Armant v. Stalder

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2009
No. 09-30027
Summary Calendar Charles R. Fulbruge III
Clerk
EDDIE J ARMANT
Plaintiff-Appellant
v.
RICHARD STALDER; STEVE RADER, WARDEN, C PAUL PHELPS
CORRECTIONAL CENTER; JAMES LEBLANC, Warden; LESSLY SMITH;
LOUIS MITCHELL
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-248
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Eddie J. Armant, Louisiana prisoner # 150261, moves this court to proceed
in forma pauperis (IFP) in this appeal from the district court’s dismissal of his
42 U.S.C. § 1983 complaint. The district court dismissed Armant’s claims
against defendants LeBlanc and Rader for failure to allege facts giving rise to a
constitutional violation. Armant’s claims against Stalder, Smith, and Mitchell
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-30027
were dismissed for insufficient service pursuant to F ED. R. C IV. P. 4(m). The
district court also denied Armant’s request to proceed IFP on appeal, certifying
that the appeal was not taken in good faith. Armant’s IFP motion is a challenge
to the district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). Armant fails to
allege facts or actions by LeBlanc and Rader which support a claim of deliberate
indifference.
This court reviews a dismissal for insufficient service for abuse of
discretion. Lindsey v. United States R. R. Retirement Bd., 101 F.3d 444, 445 (5th
Cir. 1996). This court has determined that an IFP plaintiff who requests service
on the proper defendant “is entitled to rely upon service by the U.S. Marshals
and should not be penalized for failure of the Marshal’s service to properly effect
service of process, where such failure is through no fault of the litigant.” Rochon
v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Nevertheless, once a plaintiff
is aware of possible defects in service of process, he must attempt to remedy
them. Id.Armant was aware of defects in the service of Stalder, Smith, and Mitchell
but did not take any steps to remedy the defects. Rather, he claims only that
these defendants deliberately refused service and lied regarding the reasons for
refusal. There is nothing in the record to support Armant’s assertion.
Therefore, he fails to show that the district court abused its discretion. See
Lindsey, 101 F.3d at 445.
Armant has not shown that he will present a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion
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No. 09-30027
for leave to proceed IFP is denied and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2.
The dismissal of this appeal as frivolous counts as one strike under 28
U.S.C. § 1915(g). Armant has two previous strikes. See Armant v. Kennedy, 323
F. App’x 362 (5th Cir. 2009). Because Armant has now accumulated three
strikes, he is barred from proceeding in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent of serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
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