Tyronne Wells v. Cindy Vannoy

Case: 12-30974 Document: 00512214774 Page: 1 Date Filed: 04/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 19, 2013
No. 12-30974
Summary Calendar Lyle W. Cayce
Clerk
TYRONNE WELLS,
Plaintiff-Appellant
v.
CINDY VANNOY, LSP Mail Room Lieutenant,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-821
Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Tyronne Wells, Louisiana prisoner # 397072, filed a 42 U.S.C. § 1983complaint alleging that Lt. Cindy Vannoy violated his constitutional rights by
rejecting a book that he ordered entitled Pimpology: The 48 Laws of the Game
(hereafter, Pimpology), and that she retaliated against him for filing grievances
and improperly withheld seven other books from him. The district court granted
a motion to dismiss all claims against Vannoy with the exception of Wells’s claim
that the rejection of Pimpology violated Wells’s constitutional rights. The court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30974
subsequently granted a motion by Vannoy for summary judgment on the
remaining claims, denied a motion for summary judgment by Wells, and
dismissed Wells’s suit. The court denied Wells’s motion to appeal in forma
pauperis (IFP), certifying that the appeal was not taken in good faith.
Wells now moves this court for leave to proceed IFP. By doing so, he
challenges the district court’s certification decision. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Wells challenges only the summary judgment ruling
regarding whether rejection of Pimpology violated his constitutional rights; thus,
he has abandoned any appeal of the earlier order dismissing his other claims
against Vannoy. See Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007).
This court’s inquiry into a litigant’s good faith “is limited to whether the
appeal involves legal points arguable on their merits (and therefore not
frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation and citation omitted). In the context of a summary judgment, we
review the court’s ruling de novo, employing the same standard used by the
district court. McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
Wells has failed to show that his appeal involves a nonfrivolous issue. The
district court properly analyzed Wells’s claims pursuant to the factors set forth
in Turner v. Safley, 482 U.S. 78, 85-89 (1987), which are (1) whether there is a
rational relationship between the prison regulation and the legitimate
governmental interest put forward to justify it; (2) whether the inmate has an
available alternative means of exercising the rights; (3) the impact of
accommodation on other inmates, guards, and allocation of prison resources; and
(4) the presence or absence of easy and obvious alternative means to
accommodate the right. See Prison Legal News v. Livingston, 683 F.3d 201, 214
(5th Cir. 2012).
Wells does not argue that the regulation at issue is invalid, rather, he
contends that Vannoy’s application of it violated his constitutional rights.
Vannoy rejected Pimpology because it describes techniques of manipulation and
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control, techniques that prison officials have deemed a potential threat to safety.
Although Wells disputes Vannoy’s interpretation of the book, we give deference
to determinations by prison officials. See Prison Legal News, 683 F.3d at 216,
222. Wells’s contention that other books available in prison contain similar
information as well as other information that might be dangerous is not enough
to show that Vannoy acted irrationally or arbitrarily. See id. at 216, 222. The
rejection of Pimpology was rationally related to a legitimate penological interest
in maintaining security. See id. at 215-16; Thornburgh v. Abbott, 490 U.S. 401,
415 (1989).
With respect to the second Turner factor, Vannoy’s restriction of Pimpology
does not prevent Wells from ordering other books that would be permissible
under prison regulations. Thus, Wells has not shown that he lacks adequate
alternative means of exercising his rights. See Abbott, 490 U.S. at 417-18; Prison
Legal News, 683 F.3d at 218. We also conclude that the third Turner factor–the
impact of accommodating the right–is satisfied in this case. See Prison Legal
News, 683 F.3d at 219. Finally, Wells offers no argument and points to no
evidence that the prison can easily accommodate his request with a de minimis
cost to the valid penological interest in security. Thus, this factor weighs in
Vannoy’s favor. See id. at 218. We reject as conclusional Vannoy’s due process,
equal protection, and Eighth Amendment arguments.
In light of the foregoing, there is no genuine dispute as to any material fact
and Vannoy was entitled to judgment as a matter of law. See FED. R. CIV.
P. 56(c). It follows that Wells has failed to demonstrate a nonfrivolous issue for
appeal. Accordingly, we DENY his motion to proceed IFP, and we DISMISS his
appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. We
also DENY his motion for appointment of counsel.
The dismissal of Wells’s appeal as frivolous counts as a strike for purposes
of the “three strikes” bar under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Wells is CAUTIONED that once he
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accumulates three strikes, he may not proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
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