No. 99-10905
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10905
MICHAEL J. GOWAN,
Plaintiff-Appellant,
versus
THOMAS J. CALLAHAN; CECIL YODER;
MIKE HOPPER; THOMAS YOUNG; JIM
GRANT; TRACIE WHATLEY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:98-CV-56-R
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January 17, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Michael Gowan, Texas prisoner # Q8132, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s dismissal of his civil
rights complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
By moving for IFP, Gowan is challenging the district court’s
certification that IFP status should not be granted on appeal
because his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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.
No. 99-10905
-2-
Gowan contends that he brought his claim of denial of access
to the courts in good faith because he believed that the fact
that prison officials provided forms to request legal sources
obligated them to provide those sources upon request. He does
not directly challenge the district court’s determination that it
should abstain from deciding Gowan’s claims. Gowan does assert
however, that the district court should not have dismissed
potential Heck claims with prejudice because he will be barred
from raising them once they become ripe. A dismissal with
prejudice does not preclude a later claim that meets the
preconditions for suit. Johnson v. McElveen, 101 F.3d 423, 424
(5th Cir. 1996).
Gowan also asserts that he was denied his right to
recreation and that because the detention facility officials met
to decide how to deal with him as a security risk, they must have
been deliberately indifferent to his need for recreation. To
establish deliberate indifference under the Eighth Amendment, a
prisoner must show that the defendants (1) were aware of facts
from which an inference of an excessive risk to inmate health or
safety could be drawn; and (2) drew an inference that such
potential for harm existed. Farmer v. Brennan, 511 U.S. 825, 837
(1994). Gowan concedes that after he filed a grievance, he was
offered the opportunity to participate in recreation. He has not
shown that officials drew the inference of a potential for harm.
Gowan also asserts that the fact he was required to recreate
in restraints for two hours was the result of retaliation for his
filing a grievance demanding that he be given recreation time.
No. 99-10905
-3-
However, in his pleadings Gowan conceded he had been classified
as a security or escape risk. Under these circumstances,
recreation in restraints for two weeks was not more than a
security measure which did not impose an “atypical and
significant hardship . . . in relation to the ordinary incidents
of prison life.” See Sandin v. Conner, 515 U.S. 472, 481-86
(1995)(internal citations omitted). Gowan’s appeal is without
arguable merit and is thus frivolous. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, we uphold the district court’s order certifying
that the appeal is not taken in good faith and denying Gowan IFP
status on appeal, we deny the motion for leave to appeal IFP, and
we DISMISS Gowan’s appeal as frivolous. See Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2.
APPEAL DISMISSED.