Kenneth Francis v. LA Dept of Public Sfty & Corr, et al
UNPUBLISHED OPINION ORDER FILED. [16-30298 Affirmed ] Judge: EHJ , Judge: JES , Judge: JLD Mandate pull date is 06/01/2017; granting motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Kenneth Francis [8209698-2] [16-30298]
Date Filed: 05/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 11, 2017
Lyle W. Cayce
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
JAMES LEBLANC, Individual and Official Capacity; JERRY GOODWIN,
Individual and Official Capacity; PAULA MILWEE, Individual and Official
Capacity; MICHELE NORRIS, Individual and Official Capacity; TAMMY
POOLE, Individual and Official Capacity; JEFFERY JACKSON, Individual
and Official Capacity; JOHN STEPHENSON, Individual and Official
Capacity; DAN RINEHART, Individual and Official Capacity; JEFFERY B.
FULLER, Individual and Official Capacity,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:15-CV-1454
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Kenneth Francis, Louisiana prisoner # 87595, moves for leave to proceed
in forma pauperis (IFP) in this appeal from the dismissal of his civil rights
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 05/11/2017
action as frivolous. He is challenging the district court’s certification that his
appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
According to Francis, he suffered a severe injury to his eardrum; he had
ongoing bleeding, discharge, and pain over a lengthy period; and a needed
surgery was not performed. Denial or delay of medical care may violate the
Eighth Amendment if prison officials acted with deliberate indifference. See
Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006); Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir. 1993). Although Francis’s assertions of a serious
ear injury are not disputed, Francis was seen several times by physicians for
his ear injury. Francis’s allegations state at best claims of negligence and
disagreement with treatment, which do not rise to the level of deliberate
indifference. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
In addition, Francis contends that he was required to work despite
limited duty prescriptions and that he was required to renew his limited duty
status. These allegations likewise do not suffice to state a claim for deliberate
indifference, i.e., a wanton disregard of a serious need. See Powell, 467 F.3d at
464; see also Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).
In his next argument, Francis contends that two defendants conspired
to file a false disciplinary complaint against him for malingering when he again
reported inability to work due to his foot in June 2015. Francis makes only an
unsupported assertion, without citing any facts, that the charge was false and
was filed for retaliatory purposes. Such conclusional assertions are insufficient
to support a claim of retaliation. See Woods v. Smith, 60 F.3d 1161, 1166-67
(5th Cir. 1995).
The claim arising out of the denial of Francis’s grievances by supervisory
personnel also fails.
Given that he has failed to show an underlying
Date Filed: 05/11/2017
constitutional violation, no supervisory liability attaches. See Thompkins v.
Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). Further, a prisoner does not have a
constitutional right to have a grievance resolved in his favor. Geiger v. Jowers,
404 F.3d 371, 374 (5th Cir. 2005).
Although his claims ultimately fail, not all of Francis’s assertions are
without arguable legal merit. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
Further, Francis meets the financial eligibility requirements.
Accordingly, the request for leave to proceed IFP is granted. See 28 U.S.C.
§ 1915(a)(1); Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40
(1948). However, because Francis has not shown any error by the district court
in dismissing his complaint, we will dispense with further briefing and affirm
the district court’s judgment.
The district court’s dismissal of Francis’s complaint counts as a strike for
purposes of § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64
(2015); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Francis has
two prior strikes from suits that were dismissed as frivolous and for failure to
state a claim. See Francis v. La. Dep’t of Corr., No. 5:13-cv-2457 (W.D. La.
June 11, 2014); Francis v. Thomas, No. 2:11-cv-2099 (W.D. La. Jan. 24, 2013).
Because Francis has accumulated three strikes, he is advised that he is now
barred from proceeding 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 GRANTED; JUDGMENT AFFIRMED; § 1915(G) BAR
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