Andrew Wolters v. Federal Bureau of Prisons

Case: 10-30717 Document: 00511347469 Page: 1 Date Filed: 01/11/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 11, 2011
No. 10-30717
Summary Calendar Lyle W. Cayce
Clerk

ANDREW WOLTERS,

Plaintiff-Appellant

FEDERAL BUREAU OF PRISONS; FRED MENIFEE; JOE KEFFER;
DIRECTOR SOUTH CENTRAL REGIONAL OFFICE; HARLEY G. LAPPIN;
G. MALDONADO, JR.,

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:08-CV-837

Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Andrew Wolters, federal prisoner # 10010-12, seeks to proceed in forma
pauperis (IFP) on appeal following remand for further development of his claim
that prison officials filed retaliatory disciplinary reports. The district court
dismissed the claim as frivolous and for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B). Wolters’s motion is a challenge to the district court’s

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-30717 Document: 00511347469 Page: 2 Date Filed: 01/11/2011

No. 10-30717

certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). This court’s 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). Because the district court dismissed Wolters’s claim as both frivolous
and for failure to state a claim, review is de novo. See Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005).
Wolters has failed to show that he is entitled to relief on his retaliation
claim. Wolters does not state when his grievances were filed and against whom
they were filed. Nor does he state when the allegedly retaliatory actions
occurred, merely referring to “false reports” and other “forms of retaliatory
conduct.” He has thus failed to set forth a chronology of events from which
retaliation may plausibly be inferred. See Woods v. Smith, 60 F.3d 1161, 1166
(5th Cir. 1995). Wolters’s conclusional allegations, based on his personal belief,
that he had been retaliated against are not sufficient to state a valid claim of
retaliation. See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
Wolters’s appeal is without arguable merit and, thus, frivolous. See
Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is dismissed.
See 5 TH C IR. R. 42.2. Wolters is cautioned that the dismissal of this appeal as
frivolous counts as a strike under § 1915(g), as does the district court’s dismissal
as frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
He, therefore, has two strikes under § 1915(g). Wolters is cautioned 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.