William Stamps, Jr. v. Fredrick Menifee, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [15-30664 Dismissed as Frivolous] Judge: PEH , Judge: EHJ , Judge: GJC Mandate issue date is 11/27/2017; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. William Stamps, Jr. [8021878-2] [15-30664]

Case: 15-30664

Document: 00514223594

Page: 1

Date Filed: 11/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30664

United States Court of Appeals
Fifth Circuit

FILED
November 3, 2017
Lyle W. Cayce
Clerk

WILLIAM STAMPS, JR.,
Plaintiff-Appellant
v.

FREDRICK MENIFEE; JOE KEFFER; W. A. SHERROD; RICARDO
MARTINEZ; M. D. CARVAJAL; GANSBURY; CORRECTIONAL OFFICER
PIKE; LIEUTENANT FOSTER; REEVES; CASTANEDA; GLADFELTER;
RICE; DAVIS; SPENCER SMITH; JOEL ALEXANDRE; ANDRE MOLINA;
CYNTHIA ROBERTS; S. PRICE; VANDASEN; C. PRICE,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:15-CV-218
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
William Stamps, Jr., federal prisoner # 10953-042, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his civil rights claims under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint and attached

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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exhibits, Stamps alleged various claims based on his conditions of confinement
and medical care during his incarceration from 2006 to 2013 at the United
States Penitentiary in Pollock, Louisiana (USP-Pollock).
The district court dismissed Stamps’s complaint for failure to state a
claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A. In addition, it adopted the magistrate judge’s denial of Stamps’s
IFP motion and certification that an appeal would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a)(3)(A).
By moving to proceed IFP on appeal, Stamps is challenging the
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 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 v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Stamps has not challenged the district court’s dismissal as to his claims
regarding his cosmetic skin procedure, his medical treatment for a torn leg
muscle, his treatment with Amoxicillin, or the defendants’ refusal to provide
him with an EpiPen and a special diet. He has therefore abandoned these
claims by failing to brief them before this court. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
As to his claim regarding the conditions of his confinement, Stamps
argues that the evidence contradicts the district court’s finding that prison
officials removed the toxic mold detected in USP-Pollock shortly after it was
detected. His argument on that basis lacks factual merit. His remaining
arguments regarding this claim and his medical-care claim rest on conclusory
assertions or speculation and are therefore insufficient to state a valid

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constitutional claim. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006);
Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Moreover, although he
contends that the district court erred by failing to construe his objections to the
magistrate judge’s report as a motion to amend his complaint to include the
two claims presented to this court, the record shows that such a construal was
not necessary because the magistrate judge reviewed and rejected those
claims.
Accordingly, because Stamps has not raised a nonfrivolous issue for
appeal, his IFP motion is denied, and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The district court’s dismissal
of his complaint and the dismissal of this appeal as frivolous each counts as a
strike under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Stamps is warned that if he accumulates three strikes under
§ 1915(g), he will not be able 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).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

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