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should not be published.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