Ricky Gipson v. Tim Wilkinson, et al

Filing

UNPUBLISHED OPINION FILED. [15-30682 Affirmed] Judge: CES, Judge: EGJ, Judge: EHJ. Mandate pull date is 04/20/2017 [15-30682]

Case: 15-30682

Document: 00513933450

Page: 1

Date Filed: 03/30/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30682
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 30, 2017
Lyle W. Cayce
Clerk

RICKY GIPSON,
Plaintiff-Appellant
v.

TIM WILKINSON; VIRGIL LUCAS; TOMMY GLOVER; JAY TIM MORGAN;
WARDEN STEVENS; MILDRED MELTON; THEODORE JOHNSON;
BOBBY SANDERS; PETER FLOWERS; MAC; JIMMY TURNER; ALFONZO
PACHECO; PAT THOMAS; INSURANCE COMPANY OF CORRECTIONS
CORPORATION OF AMERICA OF TENNESSEE, L.L.C.; WINN
CORRECTIONAL
CENTER;
PRISON
ENTERPRISES
GARMENT
FACTORY,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:10-CV-524
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Ricky Gipson, Louisiana prisoner # 325027, appeals the dismissal of his
42 U.S.C. § 1983 complaint following the district court’s grant of summary

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30682
judgment. This court reviews a grant of summary judgment de novo, using the
same standard as that employed by the district court. Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
In his complaint, Gipson alleged that he was routinely and
unconstitutionally strip searched and subjected to visual body cavity searches
without probable cause. The district court granted summary judgment in favor
of all defendants, with prejudice, concluding that the searches were justified
and related to the legitimate penological interest of prison security.

The

district court also dismissed Gipson’s claims, without prejudice, against
numerous defendants for lack of service.
The Supreme Court recognized in Bell v. Wolfish, 441 U.S. 520, 558-59
(1979), that controlling the flow of contraband is a legitimate penological
interest. In this case, the affidavits submitted by prison officials show that the
challenged search policies were aimed at preventing the flow of contraband
from outside drivers - who delivered supplies to the garment factory and who
routinely mingled with prisoners - to prisoners working in the garment factory
and later to prisoners in the main prison and to prevent the removal of items
from the garment factory that could be used as weapons. Gipson offered
nothing to rebut prison officials’ reasonable justification for the strip and visual
body cavity searches. Thus, Gipson has not shown that the district court erred
in granting summary judgment in favor of defendants on his Fourth
Amendment claims.
Gipson urges this court to consider his claim that the searches violated
the Eighth Amendment and the 14th Amendment. However, in this circuit,

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the Fourth Amendment provides the proper framework in which to analyze
such a claim. See Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir. 1999). The
district court dismissed Gipson’s claims regarding sexual harassment, the
conditions of the room in which he was searched, and his exposure to toxic
fumes for failure to state a claim, and we affirmed the dismissal of those claims
in Gipson’s first appeal. Gipson v. Wilkerson, 562 F. App’x 256, 257-58 (5th
Cir. 2014). Thus, those claims are not before the court in the present appeal.
Finally, because Gipson has not shown that the district court erred by granting
summary judgment in favor of all defendants, see Lewis v. Lynn, 236 F.3d 766,
768 (5th Cir. 2001), we do not address Gipson’s argument that the district court
erred by dismissing, without prejudice, the unserved defendants due to their
failure to timely raise a lack of service defense. See Hosein v. Gonzales, 452
F.3d 401, 403 (5th Cir. 2006).
The district court’s judgment is AFFIRMED.

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