IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 6, 2009
No. 08-50694
Summary Calendar Charles R. Fulbruge III
Clerk
WILLIAM CHARLES TURNER
Plaintiff-Appellant
v.
DOUG DRETKE; ALTON D CASKEY; EXIQUIO GARZA; KENNETH DEAN;
GROUNDS, Warden; NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION; JEFFREY C MANSKE
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CV-133
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
William Charles Turner, Texas prisoner # 389529, moves for permission
to proceed in forma pauperis (IFP) to appeal the denial of his motion for
preliminary injunction. In that motion, Turner sought to compel prison officials
to comply with his dietary restrictions, allegedly necessitated by both his peanut
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50694
allergy and religious practices. By moving for leave to proceed IFP, Turner is
challenging the district court’s certification that his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
A movant for a preliminary injunction must demonstrate (1) a substantial
likelihood of success on the merits, (2) a substantial threat that failure to grant
the injunction will result in irreparable injury, (3) that the threatened injury
outweighs any damage that the injunction will cause to the adverse party, and
(4) that the injunction will not have an adverse effect on the public interest.
Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Turner argues that
his injuries from the inadequate meals are irreparable because they constitute
violations of his First and Eighth Amendment rights and affect his health. We
have previously held, however, that “prisons need not respond to particularized
religious dietary requests to comply with the First Amendment.” Baranowski
v. Hart, 486 F.3d 112, 122 (5th Cir.), cert. denied, 128 S. Ct. 707 (2007).
Additionally, Turner’s brief is devoid of legal argument demonstrating that the
prison’s policy to not adhere to special dietary needs during lockdown is
unreasonable, and he has therefore waived review of that issue. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). In
light of Baranowski, Turner’s inadequate briefing, and the lack of evidence
supporting Turner’s allegations of physical injury, Turner has failed to show that
the allegation of irreparable injury has arguable merit with regard to his First
Amendment free-exercise claim.
With regard to his Eighth Amendment claim, “[t]he deprivation of food
constitutes cruel and unusual punishment only if it denies a prisoner the
minimal civilized measure of life’s necessities.” Talib v. Gilley, 138 F.3d 211, 214
n.3 (5th Cir. 1998) (internal quotation marks and citation omitted). “Whether
the deprivation of food falls below this threshold depends on the amount and
duration of the deprivation.” Id. Neither Turner’s factual allegations nor the
evidence adduced in support of his request for injunctive relief evinces a
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No. 08-50694
continuous deprivation of food for any period much less a lengthy period.
Consequently, Turner has not shown that he has been deprived life’s basic
necessities and has therefore shown neither the threat of irreparable harm nor
a substantial likelihood of success on the merits of his Eighth Amendment claim.
As Turner has not shown that the district court’s determination that his
appeal would be frivolous is incorrect, his request for IFP is denied, and his
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR.
R. 42.2. The dismissal of this appeal counts as one strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We
note that Turner has already accumulated one strike in Turner v. Mooneyham,
No. 07-10517 (5th Cir. Feb. 20, 2008) (unpublished). Turner is therefore
cautioned that if he accumulates three strikes, 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)
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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