Darnell Baldwin v. Johnny Rodgers, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [14-60384 Dismissed as Frivolous] Judge: JES , Judge: ECP , Judge: PRO Mandate pull date is 05/26/2015; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Darnell Baldwin [7748154-2] [14-60384]

Case: 14-60384

Document: 00513029205

Page: 1

Date Filed: 05/04/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 14-60384

FILED
May 4, 2015
Lyle W. Cayce
Clerk

DARNELL BALDWIN,
Plaintiff-Appellant
v.

JOHNNY RODGERS; YVONAL BATTLE; RON RAGON; MAXX DOE,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:13-CV-93
Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Darnell Baldwin, Mississippi prisoner # R5564, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 action. In his complaint, he alleged that prison officials retaliated
against him for filing grievances in violation of his First Amendment and due
process rights. The district court dismissed the complaint for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii), denied his IFP motion, and certified
that the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Document: 00513029205

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Date Filed: 05/04/2015

No. 14-60384
By moving to proceed IFP in this court, Baldwin is challenging 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). Our 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 marks and citation omitted).
The district court did not err in dismissing Baldwin’s complaint.
Baldwin did not present direct evidence or “allege a chronology of events from
which retaliation may plausibly be inferred” to show that the defendants’
actions were taken in retaliation for his filing of grievances. See Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Baldwin’s personal belief and
conclusional allegations are insufficient to show that the defendants acted with
a retaliatory motive. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.
1999); Woods, 60 F.3d at 1166. Baldwin also failed to show that absent his
filing of a grievance, he would not have been placed in administrative
segregation. See Jones, 188 F.3d at 324-25; Woods, 60 F.3d at 1166. Because
Baldwin does not allege that his new job assignment was more difficult,
strenuous, or dangerous, he has not shown that his transfer to a different job
rose to the level of actionable retaliation. See Morris v. Powell, 449 F.3d 682,
684-86 (5th Cir. 2006). Further, he does not allege or show that the facility to
which he was transferred was inferior or more dangerous than the Mississippi
State Penitentiary in which he was previously incarcerated. See Smith v.
Hebert, 533 F. App’x 479, 482 (5th Cir. 2013) (holding that transfer was not
actionable because prisoner failed to show that camp to which he was
transferred was more violent than main prison). Therefore, Baldwin has not
shown that the district court erred in dismissing his complaint for failure to
state a claim. See Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).

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No. 14-60384
In addition, Baldwin argues that the district court judge abused his
discretion in denying Baldwin’s motion to recuse him under 28 U.S.C. § 455(a)
and (b)(4) based on the judge’s unfavorable rulings in his previous habeas
proceeding. The district court’s adverse rulings were not an adequate basis for
demanding recusal. See United States v. MMR Corp., 954 F.2d 1040, 1045 (5th
Cir. 1992). Therefore, the district court judge did not abuse his discretion in
denying his recusal motion. See United States v. Anderson, 160 F.3d 231, 233
(5th Cir. 1998).
Because Baldwin has not shown that he will raise a nonfrivolous issue
on appeal, his IFP motion is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 219-20; 5TH
CIR. R. 42.2. The district court’s dismissal of Baldwin’s complaint for failure
to state a claim and the dismissal of this appeal as frivolous both count as
strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Baldwin is WARNED that, if he accumulates three strikes, he will
not be allowed to 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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