Case: 16-30973 Document: 00514090069 Page: 1 Date Filed: 07/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30973
FILED
July 26, 2017
Lyle W. Cayce
WINFRED CAMPBELL, Clerk
Plaintiff-Appellant
v.
JAMES LEBLANC; RAN LAVESPERE, Doctor,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-409
Before JOLLY, SMITH and HAYNES, Circuit Judges.
PER CURIAM: *
Winfred Campbell, Louisiana prisoner # 161377, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his pro se 42
U.S.C. § 1983 civil rights lawsuit for lack of subject-matter jurisdiction and for
failure to state a claim pursuant to FED. R. CIV. P. 12(b)(1) & (6). Construing
Campbell’s suit as alleging that the defendants violated his constitutional
rights through deliberate indifference to his serious medical needs and through
a failure to properly address his September 2014 grievance regarding his work
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-30973
assignment, the district court concluded that his claims for monetary damages:
against the defendants in their official capacities were barred by Eleventh
Amendment immunity; against James Leblanc in his individual capacity
lacked legal or factual foundation; and against Ran Lavespere in his individual
capacity were barred by qualified immunity. Additionally, the district court
declined to exercise supplemental jurisdiction over any related state law
claims. Finally, the district court denied Campbell leave to proceed IFP on
appeal, certifying that, for the reasons underlying its dismissal of the suit, the
appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3).
By moving to proceed IFP in this court, Campbell is challenging that
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In
evaluating whether the appeal is taken in good faith, the relevant inquiry is
“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 citations omitted).
When a prisoner opts to challenge the district court’s decision certifying
that his appeal is not taken in good faith, “the [IFP] motion must be directed
solely to the trial court’s reasons for the certification decision.” Baugh, 117
F.3d at 202. None of Campbell’s various filings in this court, however, actually
addresses the district court’s reasons for its certification. Campbell has failed
to specifically address, and has thereby abandoned any challenge to, the
district court’s determinations regarding Eleventh Amendment immunity,
qualified immunity, or supplemental jurisdiction. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
Campbell has likewise failed to discuss with any specificity the legal or
factual foundation of his claims for deliberate indifference to his medical needs
and for the handling of his September 2014 administrative grievance.
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No. 16-30973
Campbell’s conclusional assertions that he has been deprived of adequate
medical care are insufficient to raise a constitutional claim of deliberate
indifference to his medical needs. See Koch v. Puckett, 907 F.2d 524, 530 (5th
Cir. 1990). Notably, his most specific assertions, which relate to his alleged
denial of medical care and improper work assignment in October 2015, are not
appropriate for consideration in this appeal because they were not raised in
the district court. See Yohey, 985 F.2d at 225. As Campbell has neglected even
to reference his September 2014 grievance in his filings in this court, he has
abandoned any challenge regarding its handling. See id. at 224-25.
Accordingly, Campbell has failed to show that his appeal involves any
legal points arguable on their merits. See Howard, 707 F.2d at 220. His IFP
motion is therefore denied, and the appeal is dismissed as frivolous. See id. at
219-20; Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. In light of the
dismissal, Campbell’s “Motion to Interven[e] / Injunction” and his incorporated
motion for appointment of counsel are likewise denied.
The dismissal of Campbell’s complaint by the district court for failure to
state a claim and our dismissal of this appeal as frivolous both count as strikes
under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Given that his prior prisoner’s civil rights lawsuit was also dismissed for
failure to state a claim, Campbell has now accumulated three strikes under
§ 1915(g). See Campbell v. Cain, No. 3:14-CV-694, 2016 WL 828786 (M.D. La.
Feb. 11, 2016), report and recommendation adopted by 2016 WL 901290 (M.D.
La. Mar. 3, 2016) (unpublished). Campbell may no longer proceed IFP in any
civil action or appeal while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED.
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