Scooter Robinson v. Frank Shaw

Case: 17-60695 Document: 00514752554 Page: 1 Date Filed: 12/07/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60695 December 7, 2018
Summary Calendar
Lyle W. Cayce
Clerk
SCOOTER LYNN ROBINSON,
Plaintiff - Appellant
v.
JULIUS ANDERSON, Lieutenant, SHANQUITA ROWAN, Sergeant;
ALONZO HARVEY, officer; JOHN DOE,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:16-CV-41
Before BARKSDALE, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
Scooter Lynn Robinson, Mississippi prisoner # L1529, and proceeding
pro se on appeal, sued pursuant to 42 U.S.C. § 1983 for a variety of claims
associated with his incarceration. This court dismissed his appeal as to all but
three defendants for failure to brief his claims against those defendants. His
remaining claims fail against the remaining defendants.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 17-60695 Document: 00514752554 Page: 2 Date Filed: 12/07/2018
No. 17-60695
One of those remaining claims is for excessive force, in which Robinson
alleges: Julius Anderson sprayed him with a chemical agent (mace) while he
was using a wall phone; and, in response to the altercation that ensued, placed
him in a segregation cell without water, lights, or an intercom. The district
court dismissed the excessive-force claim for failure to exhaust administrative
remedies; and, in construing the segregation-cell claim as a condition of
confinement, dismissed it for failure to present evidence creating a genuine
dispute of material fact on whether cell conditions created a health and safety
risk. In the two other remaining claims, the district court construed a
purported retaliation claim against Alonzo Harvey and Shanquita Rowan as a
due-process claim, and dismissed it for failure to implicate a constitutionally-
protected liberty interest.
A summary judgment is reviewed de novo, applying the same standards
as the district court. See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650
(5th Cir. 2012). To the extent Robinson makes any assertions relevant to the
dismissal of any claim, he merely repeats the bare, conclusory allegations of
his initial complaint. Because Robinson has failed to identify any legal point
of “arguable merit”, this appeal is DISMISSED AS FRIVOLOUS. See 5th Cir.
R. 42.2; Dehghani v. Vogelgesang, 229 F. App’x 282, 284 (5th Cir. 2007); Smith
v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991).
Accordingly, a “strike” is imposed against Robinson under 28 U.S.C.
§ 1915(g). Robinson is WARNED that, if he accumulates three strikes, he will
not be allowed to proceed in forma pauperis in any civil action or appeal unless
he “is under imminent danger of serious physical injury”. § 1915(g). Robinson
is also WARNED that, regardless of the bar of § 1915(g), future frivolous filings
will also subject him to monetary sanctions and limits on his access to this
court and any court subject to this court’s jurisdiction. Castillo v. Asparion,
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No. 17-60695
109 F. App’x 653, 655 (5th Cir. 2004); Gabel v. Lynaugh, 835 F.2d 124, 125 (5th
Cir. 1988).
The district court erroneously imposed a strike in its partial dismissal
for failure to state a claim. Partial dismissals may not qualify as a strike under
our precedent, and that strike is therefore vacated. See Brown v. Megg, 857
F.3d 287, 290–91 (5th Cir. 2017).
DISMISSED AS FRIVOLOUS, VACATED IN PART.
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