Case: 20-50352 Document: 00516528821 Page: 1 Date Filed: 11/01/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-50352
Summary Calendar FILED
November 1, 2022
Lyle W. Cayce
Robert Foster Harlan, Jr., Clerk
Plaintiff—Appellant,
versus
McLennan County; Sheriff Parnell McNamara; Lewis
Giles; Rebecca Leibel,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CV-182
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Robert Foster Harlan, Jr., former McLennan County, Texas, inmate
# 53052, appeals the dismissal of his civil rights claims as frivolous and for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). Harlan claimed that
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50352
the system of paralegal assistance and the writing supplies provided by the
McLennan County Jail were inadequate and, coupled with problems in the
mailroom, led to the dismissal of an earlier civil rights complaint. Our review
is de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); Legate v.
Livingston, 822 F.3d 207, 209-10 (5th Cir. 2016).
Harlan must first establish that he was deprived of his constitutional
right of access to the courts, regardless of whether the claim is asserted
against a municipal entity, see Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992); a supervisory party, see Peña v. City of Rio Grande City, 879 F.3d 613,
620 (5th Cir. 2018); Estate of Davis ex rel. McCully v. City of N. Richland Hills,
406 F.3d 375, 381 (5th Cir. 2005); or an individual, see Pratt v. Harris Cnty.,
Tex., 822 F.3d 174, 180 (5th Cir. 2016). Inmates and pretrial detainees have
a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343,
346-47 (1996); see also Terry v. Hubert, 609 F.3d 757, 759-62 (5th Cir. 2010).
However, “prison law libraries and legal assistance programs are not ends in
themselves, but only the means for ensuring a reasonably adequate
opportunity to present claimed violations of fundamental constitutional
rights to the courts.” Casey, 518 U.S. at 351 (internal quotation marks and
citation omitted). Harlan must “demonstrate that the alleged shortcomings
in the library or legal assistance program hindered his efforts to pursue a legal
claim.” Id.
He has not done so. Harlan submitted his first civil rights suit
asserting claims against the McLennan County Jail medical staff and others
in 2019. The district court requested additional facts in support of the claims
and Harlan was able to timely provide them, even though he allegedly did not
receive paralegal assistance and encountered difficulties in the mailroom.
That complaint was dismissed pursuant to § 1915(e)(2)(B), with the district
court noting that the medical officials, at worst, provided negligent care and
that nothing in Harlan’s allegations rose to the level of a constitutional
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No. 20-50352
violation. Harlan needed only to provide actionable facts at that juncture to
survive dismissal, not legal argument, and does not meaningfully explain why
the lack of assistance from the paralegal program or inadequate writing
supplies prevented him from doing so.
Harlan’s motion for appointment of counsel on appeal is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). Finally, the
district court’s dismissal of Harlan’s complaint as frivolous and for failure to
state a claim counts as a strike under § 1915(g). See § 1915(g); see also Coleman
v. Tollefson, 575 U.S. 532, 537-40 (2015); Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996), abrogated in part on other grounds by Coleman, 575 U.S.
536-38. A strike was previously imposed based on the district court’s
dismissal of Harlan’s complaint for failure to state a claim in Harlan v.
McLennan County Sheriff’s Office, No. 6:19-CV-485 (W.D. Tex. Dec. 20,
2019). Harlan is WARNED that if he accumulates three strikes, he may not
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).
AFFIRMED; SANCTION WARNING ISSUED; MOTION
DENIED.
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