Mikeal Stine v. Fed Bur of Prisons Designation, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [14-10027 Dismissed as Frivolous] Judge: PEH , Judge: JLD , Judge: JEG Mandate pull date is 07/03/2014; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Mikeal Glen Stine [7553630-2] [14-10027]

Case: 14-10027

Document: 00512662214

Page: 1

Date Filed: 06/12/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10027

United States Court of Appeals
Fifth Circuit

FILED
June 12, 2014
Lyle W. Cayce
Clerk

MIKEAL GLEN STINE,
Plaintiff-Appellant
v.

FEDERAL BUREAU OF PRISONS DESIGNATION AND SENTENCE
COMPUTATION UNIT; JOSE SANTANA, Chief; LISA AUSTIN, Head Designator;
DELBERT SAWERS, Chief; UNKNOWN PERSONS,

Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-4253
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Mikeal Glen Stine, federal prisoner # 55436-098, moves for leave to
proceed in forma pauperis (IFP) on appeal. The district court dismissed Stine’s
civil rights complaint without prejudice under the three-strikes provision of 28
U.S.C. § 1915(g), determining that Stine had not plausibly alleged that he was
in imminent danger of serious physical injury, and certifying that Stine’s
appeal was not taken in good faith.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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By his IFP motion, Stine challenges the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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)
(citation omitted).
Stine’s assertion that the defendants assigned him to Administrative
Maximum United States Penitentiary (ADX) in Florence, Colorado, against the
sentencing court’s order is without merit. The court merely recommended that
Stine be kept apart from members of the Aryan Brotherhood (AB), but the
Bureau of Prisons (BOP) retained control over the place of Stine’s
imprisonment. See Tapia v. United States, 131 S. Ct. 2382, 2390-91 (2011).
Our review of Stine’s extensive history of scurrilous and frivolous
litigation confirms that he has filed more than three prior civil actions or
appeals that have been dismissed as frivolous or for failure to state a claim.
See § 1915(g). Stine nonetheless contends that he may proceed IFP in the
district court and on appeal because he has pled that he faces imminent danger
of serious bodily injury at the hands of prison gangs, particularly his former
associates in the AB. See Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th
Cir. 2011) (§ 1915(g) imposes is a “pleading requirement”).
Even with the benefit of liberal construction, Stine’s bare assertions that
he has been attacked or threatened at unspecified times in the past by other
inmates do not rise to the level of plausibly pleading that he was in “imminent
danger of serious physical injury” when he filed his complaint or his motion to
appeal IFP. See § 1915(g); Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.
1998). Moreover, Stine has been making indistinguishable claims of imminent
danger since at least 2007, and federal courts in Colorado have rejected them
based on evidence showing that Stine is adequately isolated and protected from

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other inmates at ADX. See, e.g., Stine v. Wiley, No. 06-CV-2105, 2007 WL
201251, 2-3 (D. Colo. Jan. 27, 2007) (reciting evidence that Stine was “under
supervision at all times, and not allowed to move within the institution without
some form of supervision and not allowed unmonitored personal contact with
staff or other inmates”); Stine v. Lappin, No. 07-CV-1839 2008 WL 3974361, 48 (D. Colo. Aug. 25, 2008) (rejecting assertions of new evidence and noting that
Stine made his additional claims in disregard of a prior warning against
“attempts to inundate the Court with baseless filings”); Stine v. Federal Bureau
of Prisons, No. 10-CV-1652, 2010 WL 3276196, 2 (D. Colo. Aug. 17, 2010)
(rejecting Stine’s claims of imminent danger under § 1915(g) after prison
officials attested that he was adequately protected). Stine has not plausibly
pled that conditions have changed so as to leave him unprotected.
Stine has also failed to plausibly plead any connection between the
alleged imminent danger in Colorado and his claims against the BOP
defendants in Texas, because they have no control of conditions at ADX and
because Stine has no right to be assigned to any particular prison. See Olim v.
Wakinekona, 461 U.S. 238, 245-46 (1983); Meachum v. Fano, 427 U.S. 215, 22425 (1976).
Because Stine has failed to present a nonfrivolous issue regarding the
district court’s certification, his motion for leave to proceed IFP on appeal is
DENIED. See Howard, 707 F.2d at 220. Further, the appeal is DISMISSED
as frivolous because the facts relevant to Stine’s IFP motion are inextricably
intertwined with the merits of his appeal of the district court’s ruling that he
is barred under § 1915(g) and does not plausibly plead imminent danger. See
Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2.

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