Charles Wallace, Sr. v. State of Louisiana, et al

Filing

UNPUBLISHED OPINION FILED. [16-30250 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 05/26/2017 [16-30250]

Case: 16-30250

Document: 00513981328

Page: 1

Date Filed: 05/05/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30250
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
May 5, 2017
Lyle W. Cayce
Clerk

CHARLES KENNETH WALLACE, SR.,
Plaintiff–Appellant,
v.

STATE OF LOUISIANA; BOBBY JINDAL, Governor, State of Louisiana;
JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections;
JAMES BUDDY CALDWELL, Attorney General, State of Louisiana; MASTER
TOBACCO SETTLEMENT; PRICEWATERHOUSECOOPERS, L.L.P., London,
England, Master Tobacco Settlement Administrators; LOUISIANA PRISON
ENTERPRISES; UNIDENTIFIED PARTIES,
Defendants–Appellees.
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-1881
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Charles Kenneth Wallace, Sr., Louisiana prisoner # 093248, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for
failure to state a claim. He argues that the no-smoking policy at the David
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Wade Correctional Center violated his right to be free from ex post facto
punishment and his rights of equal protection, freedom of religious expression,
free speech, and freedom of association. As to these arguments, we discern no
error in the district court’s dismissal of Wallace’s § 1983 complaint. See, e.g.,
Warren v. Miles, 230 F.3d 688, 692 (5th Cir. 2000); McBride v. Bremer, No. 925522, 1993 WL 129786, at *2 (5th Cir. Apr. 16, 1993) (unpublished) (per
curiam); Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008); see also
Gallagher v. City of Clayton, 699 F.3d 1013, 1018-19 (8th Cir. 2012).
Regarding Wallace’s remaining claims, we decline to consider his
challenge to the constitutionality of Act 815 of the 2006 Session of the
Louisiana Legislature, which prohibited and penalized smoking in public
buildings, as the issue is raised for the first time on appeal. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Next, it is unavailing for Wallace to
claim that the State’s purported waiver of appeal in Wallace v. Ieyoub, No. 9530013, 1995 WL 581549, at *1 (5th Cir. Aug. 24, 1995) (unpublished) (per
curiam), granted him the right to smoke in prison when the case mentions no
such right. It is likewise unavailing for Wallace to claim that the district court
erred in dismissing his case without permitting discovery, see Martin v. Scott,
156 F.3d 578, 579-80 & n.2 (5th Cir. 1988) (per curiam); that the magistrate
judge acted improperly without the consent of the parties, see 28 U.S.C.
§ 636(b); and that the district court erred in failing to rule on a “Motion to
Dismiss Without Prejudice,” see Yohey, 985 F.2d at 225.
Wallace’s

assertions

regarding

the

tobacco

incomprehensible and thus are deemed abandoned.

industry

are

See United States v.

Cothran, 302 F.3d 279, 286 n.7 (5th Cir. 2002). Finally, it is frivolous for
Wallace to argue in a conclusory manner that the State has fraudulently
concealed the fact that tobacco products do not cause cancer. See Samford v.

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Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (per curiam). In light of the foregoing,
the judgment of the district court is affirmed.
The district court’s dismissal of Wallace’s complaint as frivolous and for
failure to state a claim counts as a “strike” under 28 U.S.C. § 1915(g). See
Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).

Wallace has

accumulated at least two other strikes. See Wallace v. Edwards, No. 93-3651,
1994 WL 399144, at *1 (5th Cir. July 21, 1994) (unpublished) (per curiam); see
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Accordingly, he is
prohibited from proceeding in forma pauperis in any civil action or appeal that
is filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
Further, we warn Wallace that frivolous, repetitive, or otherwise abusive
filings will invite the imposition of sanctions, which may include dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
and any court subject to this court’s jurisdiction. See Coghlan v. Starkey, 852
F.2d 806, 817 n.21 (5th Cir. 1988) (per curiam). Wallace should review any
pending appeals and actions and move to dismiss any that are frivolous.
AFFIRMED; § 1915(g) BAR IMPOSED; SANCTION WARNING
ISSUED.

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