Chimenium Echendu v. Patterson

Case: 10-50796 Document: 00511385751 Page: 1 Date Filed: 02/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2011
No. 10-50796
Summary Calendar Lyle W. Cayce
Clerk
CHIMENIUM ODU ECHENDU,
Plaintiff-Appellant
v.
MAJOR NFN PATTERSON; LIEUTENANT NFN FARLEY; LIEUTENANT
NFN GROGAN,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CV-65
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Chimenium Odu Echendu, Texas prisoner # 1290347, has applied for leave
to proceed in forma paupers (IFP) for an appeal from the dismissal of his civil
rights complaint for failure to state a claim upon which relief may be granted.
“An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3); Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); see also Baugh v. Taylor, 117 F.3d
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50796 Document: 00511385751 Page: 2 Date Filed: 02/17/2011
No. 10-50796
197, 202 (5th Cir. 1997). This court’s inquiry into whether the appeal is taken
in good faith “is limited to whether the appeal involves ‘legal points arguable on
their merits (and therefore not frivolous).’” Howard, 707 F.2d at 220.
Echendu contended in the district court that the defendants refused to
grant him access to a law library, resulting in his failure to file a timely notice
of appeal in his criminal case, in violation of his right of access to the courts. “An
inmate alleging the denial of his right of access to the courts must demonstrate
a relevant, actual injury stemming from the defendant's unconstitutional
conduct.” Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009), cert. denied, 130
S. Ct. 3368 (2010). To make such a showing, the inmate must “allege that his
ability to pursue a ‘nonfrivolous,’ ‘arguable’ legal claim was hindered.” Id.Echendu raises no argument on appeal with respect to his Sixth Amendment
claim. Instead, Echendu asserts that the district court erred in granting
summary judgment for the defendants on grounds of qualified immunity. The
district court dismissed Echendu’s complaint because he had failed to state a
valid denial-of-access-to-the-courts claim; its decision was not based upon
qualified immunity.
Echendu argues in conclusional fashion that the district court should not
have dismissed his complaint without giving him an opportunity to file an
amended pleading and to discover evidence supporting his constitutional claims.
In ruling on the motion to dismiss, the district court properly regarded as true
Echendu’s contention that he was denied access to a law library during the
appeal period in his criminal case. See In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007) (in ruling on motion to dismiss, district court must
accept well-pleaded facts as true, viewing them in light most favorable to
plaintiff). Echendu has not identified any additional facts that he would have
alleged in his amended complaint, nor does he state what additional facts could
have been developed through discovery, that would have precluded dismissal of
his complaint. Echendu makes no argument with respect to the district court’s
2
Case: 10-50796 Document: 00511385751 Page: 3 Date Filed: 02/17/2011
No. 10-50796
conclusion that Echendu had failed to identify any potential claim that he was
prevented from raising on appeal. See id. (to avoid dismissal, plaintiff must
assert a claim that is plausible and not based on speculative allegations). No
nonfrivolous issue has been asserted with respect to the district court’s order
granting the defendants’ motion to dismiss.
Echendu’s appeal is without arguable merit and is therefore frivolous. See
Howard, 707 F.2d at 220. Because the appeal is frivolous, it is DISMISSED. See
5 TH C IR. R. 42.2. The dismissal of this appeal and the district court’s dismissal
of the complaint for failure to state a claim upon which relief may be granted
both count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). We CAUTION Echendu that if he accumulates
three strikes, he will not be allowed to proceed IFP in any civil action or appeal
filed while he is detained or incarcerated in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
3