IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 7, 2011
No. 10-30877
Summary Calendar Lyle W. Cayce
Clerk
PRENTICE ROBINSON,
Plaintiff-Appellant
v.
N. BURL CAIN, Warden of the Louisiana State Penitentiary; LARRY CLARK,
Chairman of the Louisiana Board of Pardons; EUGENE “POP” HATAWAY,
Member, Louisiana Board of Pardons; CLEMENT LAFLEUR, Member,
Louisiana Board of Pardons; KENNETH A. JONES, Member, Louisiana Board
of Pardons; HENRY W. TANK POWELL; BOBBY JINDAL, Governor, State of
Louisiana; JAMES M. LEBLANC, Secretary of the Louisiana Department of
Public Safety and Corrections,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-718
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30877
Prentice Robinson, Louisiana prisoner # 75065, moves for leave to proceed
in forma pauperis (IFP) on appeal following the district court’s denial of his IFP
motion and certification that his appeal is not taken in good faith. By moving
to proceed IFP, Robinson challenges the district court’s certification. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Because the merits of Robinson’s
appeal are “inextricably intertwined” with the district court’s certification that
the appeal was not taken in good faith, we must determine both issues. Id.
Robinson alleged that the defendant state governor and members of the
Louisiana Board of Pardons—Governor Bobby Jindal, Larry Clark, Eugene
Hathaway, Kenneth A. Jones, Henry Powell, and Clement LaFleur, Jr.—should
be enjoined from using changes in Louisiana’s pardon process instituted after his
1972 conviction for aggravated rape and his 1973 sentence for attempted simple
rape because the changes “effectively alter or extend [his] prison terms” in
violation of ex post facto provisions contained in the United States Constitution
and the Louisiana constitution. Those defendants then moved for summary
judgment, alleging that Robinson’s complaint was time barred by the Louisiana
liberative prescription of one year applicable to delictual actions. Robinson
argued, inter alia, that his complaint was timely under the doctrine of contra
non valentem. He reasoned that the doctrine applied because he was unable to
bring a § 1983 challenge to Louisiana’s pardon procedures until the Supreme
Court issued its opinion in Wilkinson v. Dotson, 544 U.S. 74 (2005) (holding that
the claims of two state prisoners challenging the validity of state procedures for
determining parole eligibility were properly brought under § 1983 and did not
have to be brought in a habeas proceeding). The district court granted summary
judgment in favor of the movants, and it also dismissed the claims against Cain
and LeBlanc as frivolous.
Robinson does not dispute (1) the district court’s finding that he had actual
or constructive knowledge as early as 1977 that the 1974 constitutional changes
had been applied to his sentence or (2) the district court’s finding that he knew
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No. 10-30877
or should have known that laws, policies, and practices concerning sentence
commutation that had been enacted or adopted between 1992 and 1994 had been
applied retroactively to his sentence in 1994 when he sought to have it
commuted. Instead, he reiterates his contention that the doctrine of contra non
valentum applies to save his claims from a time-bar dismissal.
Robinson’s reliance on Wilkinson, 544 U.S. 74, is misplaced. We have long
adhered to the rule that Wilkinson later stated for all federal courts. See
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (holding that § 1983 was the
proper vehicle for a prisoner’s challenge, on due process and ex post facto
grounds, to parole procedures that, were the challenge successful, “would not
automatically entitle [him] to accelerated release”); see also Serio v. Members,
Louisiana State Board of Pardons, 821 F.2d 1112, 1118 (5th Cir. 1987). Thus,
Robinson has failed to show that prescription had not run on his claims when he
filed his § 1983 action in 2006. See Terrebonne v. Mobil Oil Corp., 310 F.3d 870,
877 (5th Cir. 2002).
Additionally, a failure to reach a result desired by a prisoner-grievant is
not a deprivation of due process. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005). Also, the failure to allege wrongdoing by LeBlanc left no arguable legal
or factual basis for holding him liable. See § 1915(e)(2)(B)(i). Accordingly, the
district court did not abuse its discretion in dismissing these claims as frivolous.
See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Robinson has not shown that his appeal is taken in good faith, i.e., that it
presents a nonfrivolous issue. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). A nonfrivolous issue is one that does not “lack an arguable basis in law
or fact.” Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). Accordingly, we
must deny Robinson’s IFP motion, see Carson, 689 F.2d at 586, and dismiss this
appeal. See 5TH CIR. R. 42.2.
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No. 10-30877
The dismissal of this appeal counts as a strike for purposes of § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Robinson is
cautioned that if he accumulates three strikes under § 1915(g) he will be unable
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).
MOTION TO PROCEED IFP DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.
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