McFadden v. Welch

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60151
Summary Calendar

ALAN McFADDEN, ET AL.,
Plaintiffs-Appellants,

versus

RONALD WELCH, ET AL.,
Defendants-Appellees.

Appeal from the United States District Court
For the Northern District of Mississippi
(4:93-CV-131-D-D)
(June 15, 1995)

Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiffs, inmates of the Mississippi State Prison, appeal

the dismissal as frivolous of their pro se in forma pauperis civil

rights complaint. Finding no error, we affirm.

Background

The plaintiffs are seven unnamed class members in Gates v.

*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
Collier,1 an ongoing class action before Chief Judge L.T. Senter in

the Northern District of Mississippi, challenging allegedly

unconstitutional conditions and practices in the state

penitentiary. The Mississippi Department of Corrections, the Gates

defendant, filed a Motion to Certify Administrative Remedy Program

pursuant to 42 U.S.C. § 1997e, the Civil Rights of Institutional

Persons Act, and 28 C.F.R., part 4. Plaintiffs contend that they

submitted written objections opposing the certification to the

court and to attorneys for each side. Ronald R. Welch, the

attorney for the Gates plaintiffs, informed the district court that

there was no objection to the motion, and the court signed an order

certifying the Administrative Remedy Program and providing that it

would begin on April 18, 1994.2

The plaintiffs filed the instant civil rights suit against

Judge Senter, Welch, and the MDOC, alleging that the Administrative

Remedy Program did not meet the minimum requirements of CRIPA, and

that the defendants conspired to implement the unlawful grievance

procedure.3 They sought declaratory and injunctive relief.

Concluding that it lacked jurisdiction to modify or set aside the

Gates certification order, and that Judge Senter was entitled to

1
GC71-6-S-D.
2
The certification order, signed on April 18, 1994, provided
that the court would not entertain MDOC inmates' complaints or
grievances unless they first exhausted remedies as provided in the
Administrative reviews procedure.
3
The suit was brought under 42 U.S.C. §§ 1981, 1983, 1985,
1986, 1988, and 1997 to secure rights protected by the first,
fifth, and fourteenth amendments.

2
absolute immunity, the district court dismissed the action with

prejudice for failure to state a claim on which relief could be

granted. The plaintiffs timely appealed.

Analysis

Because this case was dismissed sua sponte prior to service of

process on the defendants, we treat it as a 28 U.S.C. § 1915(d)

dismissal,4 and review under the abuse of discretion standard.5 The

district court properly denied the plaintiffs' attempt to

collaterally challenge the Gates order.6 The order can be

challenged on direct appeal. Moreover, the plaintiffs' claim that

the defendants conspired to implement an unlawful Administrative

Remedy Program, and corresponding request that the United States

Attorney file criminal conspiracy charges was properly dismissed,

as it lacks an arguable basis in both fact and law.7

The judgment of the district court is AFFIRMED.

4
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
5
Ancar v. Sara Plasma, Inc., 964 F.2d 465 (5th Cir. 1992).
6
See e.g., Gillespie v. Crawford, 858 F.2d 1101 (5th Cir.
1988) (explaining that, to ensure orderly administration of a class
action and prevent inconsistent adjudications, individual class
members are barred from pursuing separate lawsuits seeking
equitable relief within the class action subject matter).
7
Ancar.

3