     Case: 16-31060      Document: 00514145444         Page: 1    Date Filed: 09/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                      No. 16-31060                                   FILED
                                                                             September 7, 2017
                                                                                Lyle W. Cayce
EDWARD SIMMONS,                                                                      Clerk

                                                 Plaintiff-Appellant

v.

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY;
STEPHINE LAMARTINERE, Assistant Warden; SHAWNEE GUILEYARDO;
CHRISTINE DARBONNE, Emergency Medical Technician, UNKNOWN
CARMAUCHE, Emergency Medical Technician; UNKNOWN COLLEEN,
Sergeant, T.U. Kitchen; BRODDIE ROGER, Lieutenant; JAMES M.
LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-664


Before JOLLY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Edward Simmons, Louisiana prisoner # 103371, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-31060

grant of summary judgment and dismissal of his 42 U.S.C. § 1983 complaint
alleging that the defendants were deliberately indifferent to his serious
medical needs, retaliated against him for requesting emergency medical
attention and filing prior administrative grievances, and failed to afford him a
disciplinary hearing after placing him in administrative segregation in
connection with a wrongful disciplinary charge. The district court denied
Simmons’s IFP motions and certified that the appeal was not taken in good
faith. By moving for IFP status, Simmons is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Simmons does not challenge the district court’s dismissal of his official
capacity claims or its refusal to exercise supplemental jurisdiction over any
remaining state law claims. He also does not challenge the district court’s
denial of his cross-motion for summary judgment. These issues are therefore
abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      As Simmons correctly notes, Administrative Remedy Procedure (ARP)
No. LSP-2014-1734 was not exhausted when he filed suit. See Gonzalez v. Seal,
702 F.3d 785, 788 (5th Cir. 2012). Nevertheless, ARP No. LSP-2014-1734 did
not specifically address the events set forth in his complaint, and the two ARPs
pertaining to those events were exhausted for purposes of 42 U.S.C. § 1997e(a).
Therefore, Simmons has not shown that a nonfrivolous issue exists regarding
the exhaustion of his administrative remedies.
      The district court’s dismissal of Simmons’s § 1983 claims likewise does
not present a nonfrivolous issue for appeal. Because the defendants asserted
their entitlement to qualified immunity in a properly supported motion for
summary judgment, the burden shifted to Simmons to come forward with
competent summary judgment evidence showing that the defendants were



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                                  No. 16-31060

deliberately indifferent to his serious medical needs. See Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991).   Even if we were to consider Simmons’s unsworn allegations
competent summary judgment evidence, they were insufficient to create a
genuine issue of material fact precluding a summary judgment. See Ontiveros
v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Notably, Simmons
presented no evidence that he was substantially harmed by the less than nine-
hour delay in treatment or by the alleged deviations from his prescribed diet.
      Simmons has also failed to show that the district court erred in
concluding that his retaliation allegations were conclusional and insufficient
to preclude summary judgment. See Jones v. Greninger, 188 F.3d 322, 324-25
(5th Cir. 1999); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Finally,
because Simmons’s placement in administrative segregation did not implicate
a constitutionally protected liberty interest, see Luken v. Scott, 71 F.3d 192,
193 (5th Cir. 1995), the district court need not have examined whether he was
afforded due process in connection with that charge, see Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989).
      Simmons has failed to show that his 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).
Accordingly, his IFP motion is denied, and his appeal is dismissed as frivolous.
See 5TH CIR. R. 42.2.
      The dismissal of Simmons’s appeal as frivolous counts as a strike for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Court records show that Simmons has accumulated at least one
other strike based on the district court’s dismissal of his complaint as malicious
in Simmons v. Foti, No. 2:98-cv-1332 (E.D. La. June 15, 1998). Simmons is



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cautioned that if he accumulates three strikes under § 1915(g), 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).
      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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