     Case: 14-31250      Document: 00513240349         Page: 1    Date Filed: 10/21/2015




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

                                    No. 14-31250                                FILED
                                  Summary Calendar                        October 21, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
DONALD M. BOSWELL,

                                                 Plaintiff-Appellant,

v.

CLAIBORNE PARISH DETENTION CENTER; JOHNNY SUMLIN; JOHN
GOODWIN; JAMES BANKS; STAFF CLAIBORNE PARISH DETENTION
CENTER,

                                                 Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CV-739


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Donald M. Boswell, Louisiana prisoner # 567056, appeals the dismissal,
as frivolous, of his civil rights action under 42 U.S.C. § 1983. Boswell filed his
complaint in May 2011, and he raised numerous claims based on events that
occurred during his confinement as a pretrial detainee at the Claiborne Parish



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31250

Detention Center (CPDC). As explained below, we affirm the district court’s
judgment in part, vacate the judgment in part, and remand.
      A district court must dismiss a prisoner’s in forma pauperis (IFP) civil
rights complaint if the court determines that the action is frivolous or malicious
or fails to state a claim upon which relief may be granted. Black v. Warren,
134 F.3d 732, 733 (5th Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). A
district   court   may    dismiss   an   IFP   complaint     as   frivolous   under
§ 1915(e)(2)(B)(i) if it lacks an arguable basis in law or fact.          Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A complaint lacks an arguable
basis in law if it is based upon an indisputably meritless legal theory; it lacks
an arguable basis in fact if the facts alleged are “fantastic or delusional
scenarios.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (quotation
marks omitted). We review the district court’s dismissal of a complaint as
frivolous pursuant to § 1915(e)(2)(B)(i) for an abuse of discretion. Brewster v.
Dretke, 587 F.3d 764, 767 (5th Cir. 2009).
      Several of Boswell’s claims were dismissed on prescription grounds. See
Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (holding that, in
Louisiana, a one-year limitations period applies to § 1983 claims). As to claims
concerning being locked in a visitation booth, being threatened by inmates, the
denial of access to legal mail, the denial of treatment and medication for kidney
stones prior to November 10, 2009, hypoglycemia, damage to his property, a
wrist fracture suffered due to the use of excessive force, false disciplinary
charges, and noxious paint fumes, Boswell has abandoned the prescription
issue by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993) (holding that, although their briefs are afforded liberal construction,
even pro se litigants must brief arguments to preserve them).             Boswell’s
contentions that he is entitled to equitable tolling of the limitations period



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because he “had no knowledge of the civil law,” was given incorrect legal advice
by a “prison inmate counsel,” and lacked access to the prison law library while
in administrative segregation are unavailing. See Ledbetter v. Wheeler, 31,357
(La. App. 2 Cir. 12/9/98), 722 So. 2d 382, 385 (rejecting prisoner’s contention
that he was entitled to equitable tolling because he lacked knowledge of the
law until given access to the prison law library); Felder v. Johnson, 204 F.3d
168, 171-72 (5th Cir. 2000) (holding that ignorance of the law, temporary denial
of access to legal materials, lack of knowledge of filing deadlines, and
inadequacies of a prison law library are insufficient to warrant equitable
tolling in the AEDPA context). Accordingly, we affirm the dismissal of the
above claims.
      We likewise affirm the dismissal of several other claims. As to claims
concerning the lack of medical treatment and medication for kidney stone pain
on June 11, 2010, irritable bowel syndrome, and a bleeding ulcer, Boswell’s
allegations fail to establish deliberate indifference to serious medical needs,
see Thompson v. Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001), and his
allegations likewise fail to demonstrate that any delay in providing treatment
resulted in substantial harm, see Rogers v. Boatright, 709 F.3d 403, 410 (5th
Cir. 2013). As to his claim regarding the failure to provide sanitary supplies
and hygiene products, Boswell’s allegations do not show deliberate indifference
to a serious medical need, nor do they show that the conditions of his
confinement amounted to punishment. See Harris v. Angelina Cty., 31 F.3d
331, 334 (5th Cir. 1994). His claim regarding the provision of an unsanitary
mattress, which he was unable to clean for two days, fails because his
allegations demonstrate that the alleged deprivation was pursuant to a “full
shakedown” of his dorm unit and thus was “an incident of some other
legitimate governmental purpose.” Id. Boswell’s claim that he was denied



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access to the courts because he could not consult by telephone with the
appointed attorney representing him on criminal charges, and because he
could not pursue a civil child custody matter, was properly dismissed as
frivolous. See Lewis v. Casey, 518 U.S. 343, 353 & n.3, 355 (1996); Degrate v.
Godwin, 84 F.3d 768, 769 (5th Cir. 1996). Lastly, the district court did not err
in dismissing Boswell’s claim that his custodial status was improperly
changed.   See McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990);
Wilkerson v. Maggio, 703 F.2d 909, 911 (5th Cir. 1983).
      As to the following claims, however, our review shows that the district
court erred its dismissing the claims as frivolous. The district court dismissed
Boswell’s claim regarding the denial of medical attention and medication for
his hernia on grounds that the claim was prescribed; however, as Boswell
argues, he has pleaded a continuing violation based on “a failure to provide
needed and requested medical attention.” Lavellee v. Listi, 611 F.2d 1129, 1132
(5th Cir. 1980). Thus, it is not clear from the face of his complaint that the
claim was prescribed. See Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
Boswell’s allegations as to the denial of medical care for his hernia are neither
factually nor legally frivolous, and likewise, Boswell’s claim concerning a head
and chest cold, which, when allegedly left untreated, worsened to bronchitis
and walking pneumonia, is not frivolous.       See Samford, 562 F.3d at 678.
Similarly, Boswell’s claim that he was retaliated against upon the discovery by
CPDC officials of his efforts to contact the Federal Bureau of Investigation and
the American Civil Liberties Union regarding his treatment at the facility is
not frivolous. See Samford, 562 F.3d at 678; Woods v. Smith, 60 F.3d 1161,
1165 (5th Cir. 1995). Finally, in view of Boswell’s allegations that he was
subjected to strip searches by or in front of female deputies and after
non-contact visits, we conclude that his claim is not frivolous. See Samford,



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562 F.3d at 678; Moore v. Carwell, 168 F.3d 234, 235-37 (5th Cir. 1999); Letcher
v. Turner, 968 F.2d 508, 510 & n.1 (5th Cir. 1992); Johnson v. Scott, 2002 WL
243359, *1 (5th Cir. Jan, 23, 2002) (unpublished). Accordingly, we vacate the
dismissal of these claims as frivolous and remand them to the district court for
further proceedings consistent with this opinion.
      To the extent that Boswell claims that he was denied access to the courts
to pursue a challenge to his punishment for a disciplinary violation, and that
he was subjected to temperature extremes, poor ventilation, and the
indiscriminate use of chemical spray, we do not consider such claims because
they were not made in the district court. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999); see also Forbush v. J.C. Penney Co., 98 F.3d
817, 822 (5th Cir. 1996) (“The Court will not allow a party to raise an issue for
the first time on appeal merely because a party believes that he might prevail
if given the opportunity to try a case again on a different theory.”).
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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