Gregory Bailey v. East Baton Rouge Parish Prison, et al
UNPUBLISHED OPINION ORDER FILED. [15-30774 Dismissed as Frivolous] Judge: PEH, Judge: CH, Judge: JEG. Mandate pull date is 11/02/2016; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Gregory Bailey [8038706-2] [15-30774]
Date Filed: 10/12/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
October 12, 2016
Lyle W. Cayce
EAST BATON ROUGE PARISH PRISON; DENNIS GRIMES; 19TH
JUDICIAL DISTRICT COURT; TONY MARABELLA; DOCTOR VINCENT
LEGGIO, East Baton Rouge Parish Prison Dentist,
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:12-CV-224
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Gregory Bailey, Louisiana prisoner # 216886, filed the instant 42 U.S.C.
§ 1983 suit to seek redress for alleged acts of deliberate indifference to serious
Bailey named East Baton Rouge Parish Prison (EBRPP),
Warden Dennis Grimes, the Nineteenth Judicial District Court for the Parish
of East Baton Rouge (19th JDC), Judge Tony Marabella, and Dr. Vincent
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 10/12/2016
Leggio as defendants. The district court granted dismissal to EBRPP, the 19th
JDC, and Judge Marabella pursuant to Federal Rule of Civil Procedure
12(b)(6). The district court granted summary judgment to Grimes and Leggio
pursuant to Rule 56(a). Thereafter, the district court dismissed Bailey’s suit.
Now, Bailey moves this court for authorization to proceed in forma
pauperis (IFP) on appeal. By moving to proceed IFP, Bailey 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 an
appellant’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).
We may dismiss the appeal if it is frivolous. See Baugh, 117 F.3d at 202 n.24;
5TH CIR. R. 42.2.
We conduct a de novo review of a grant of summary judgment, using the
same standard as the district court. Nickell v. Beau View of Biloxi, L.L.C., 636
F.3d 752, 754 (5th Cir. 2011).
“The [district] court shall grant summary
judgment 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). The evidence is viewed in the light most favorable to the
assertions may not be relied on as evidence by the nonmoving party.” Carnaby
v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
Bailey does not challenge the district court’s dismissal of his claims
against EBRPP, the 19th JDC, Judge Marabella, and Grimes.
construing his pleadings liberally, he contends that the district court erred by
dismissing his claims that Leggio was deliberately indifferent to his serious
medical needs. The deliberate-indifference standard set forth in Farmer v.
Date Filed: 10/12/2016
Brennan, 511 U.S. 825, 837-40 (1994), applies to pretrial detainees. See Hare
v. City of Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996) (en banc). In order
to prevail, a pretrial detainee must demonstrate that a government official was
deliberately indifferent to “a substantial risk of serious medical harm.”
Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000). A prison official acts
with deliberate indifference to an inmate’s health “only if he knows that [the]
inmate[ ] face[s] a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847; see
also Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (holding that prisoner
must “submit evidence that prison officials refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical
needs” (internal quotation marks and citation omitted)); Reeves v. Collins, 27
F.3d 174, 176-77 (5th Cir. 1994) (applying Farmer to denial of medical care
Our review of the record and Bailey’s arguments shows that this
standard has not been met.
Rather, Bailey’s contentions amount to a
disagreement with the treatment received or an allegation of malpractice,
neither of which amounts to deliberate indifference. See Stewart v. Murphy,
174 F.3d 530, 534 (5th Cir. 1999); Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1995). Moreover, the evidence presented by Leggio to the district
court established that there is no genuine issue of material fact that Leggio did
not ignore Bailey’s complaints, did not refuse to treat him, did not intentionally
treat him incorrectly, and did not exhibit a “wanton disregard” for Bailey’s
“serious medical needs.” See Gobert, 463 F.3d at 346. The evidence also
directly contradicted Bailey’s conclusory assertions that Leggio was
deliberately indifferent, refused to help Bailey, and let Bailey suffer.
Date Filed: 10/12/2016
Bailey did not submit or point to any evidence to the district court to
establish the existence of a triable issue. FED R. CIV. P. 56(c)(2). The only
support that Bailey relies upon in this court to show the existence of a triable
issue are the conclusory allegations of his IFP pleadings, which do not meet
the requirements of Rule 56.
See Wheat v. Fla. Parish Juvenile Justice
Comm’n, 811 F.3d 702, 707 (5th Cir. 2016)(“bare allegations” are insufficient
to meet the non-movant’s burden to show a genuine dispute of material fact);
Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (“When the moving
party has met its Rule 56(c) burden, the nonmoving party cannot survive a
summary judgment motion by resting on the mere allegations of its
pleadings.”). Because Bailey has failed to establish that there is a genuine
issue for trial concerning his deliberate indifference claim against Leggio, he
has not shown that the district court erred by granting Leggio’s motion for
summary judgment with respect to this claim or that he will raise a
nonfrivolous appellate claim concerning it.
See Duffie, 600 F.3d at 371;
Howard, 707 F.2d at 220. Accordingly, Bailey’s motion for leave to proceed IFP
on appeal is denied, and his appeal is dismissed as frivolous. See Baugh, 117
F.3d at 202 n.24; 5TH CIR. R. 42.2.
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.
court’s dismissal counts as a strike under 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Bailey is WARNED that if
he accumulates three strikes, he will not be allowed to proceed IFP in any civil
action or appeal unless he is under imminent danger of serious physical injury.
See § 1915(g).
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