     Case: 18-40920   Document: 00515470659   Page: 1   Date Filed: 06/29/2020




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

                                                                       FILED
                              No. 18-40920                         June 29, 2020
                            Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk


FREDDIE FOUNTAIN, and all others similarly situated,

                                         Plaintiff-Appellant

v.


JOHN RUPERT, Warden, Coffield Unit; GAYE KARRIKER, Law Library
Supervisor, Coffield Unit; JANE/JOHN DOES, Titles Unknown, Coffield Unit;
JANE/JOHN DOES, Librarian(s), regular library, Coffield Unit; BRYAN
COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE; SENIOR WARDEN JEFFERY CATOE; ASSISTANT WARDEN
JEFFREY RICHARDSON; FOOD SERVICE CAPTAIN MODESTO URBINA;
GRIEVANCE INV. BENNIE COLEMAN; BRAD LIVINGSTON, EXECUTIVE
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE; MEDICAL
DOCTOR PAUL SHRODE; NURSE PRACTITIONER JACINTA ASSAVA;
LVN DEADRA MARTIN; PAMELA PACE; CARRI STEVENSON,

                                         Defendants-Appellees

SUSAN MULLINAX

                                         Appellee.



                Appeals from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 6:15-CV-100
     Case: 18-40920      Document: 00515470659         Page: 2    Date Filed: 06/29/2020


                                      No. 18-40920

Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Freddie Fountain, Texas prisoner # 1640115, appeals the district court’s
judgment dismissing his civil rights complaint with prejudice pursuant to 28
U.S.C. § 1915A(b)(1). He has also filed motions to allow attachments to his
appellant’s brief as an appendix; to file a supplemental appellant’s brief; to
appoint counsel; for judicial notice; to file an amended appellant’s brief; to
withdraw his motions to appoint counsel, for judicial notice, and for the
emergency appointment of counsel, which was docketed as a memo in support
of his motion to appoint counsel; and to expedite the appeal.
       Fountain contends that the district court erred in dismissing his
complaint pursuant to the screening provisions of § 1915A because he was
denied an opportunity to expound upon his claims or amend his complaint. He
also contends that had the district court applied the correct standard, his
complaint would not have been dismissed as frivolous or for failure to state a
claim upon which relief may be granted.
       As an initial matter, we conclude that the district court abused its
discretion in denying Fountain’s motion to add an excessive heat claim against
former Texas Department of Criminal Justice (TDCJ) Executive Director Brad
Livingston and TDCJ Executive Director Brian Collier. See Marucci Sports,
L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014). With
respect to all other motions to amend, we note that the record reflects that
Fountain was afforded multiple opportunities to amend his complaint, develop
his factual allegations, and plead his best case prior to the district court’s
dismissal of his complaint pursuant to § 1915A(b)(1), see Jacquez v. Procunier,


       * 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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801 F.2d 789, 793 (5th Cir. 1986), and Fountain cannot show that the district
court otherwise abused its discretion in denying his motions to amend or
supplement the operative amended complaint with respect to any other
allegations, see Marucci Sports, L.L.C., 751 F.3d at 378; Burns v. Exxon Corp.,
158 F.3d 336, 343 (5th Cir. 1998).
      In the operative amended complaint, Fountain alleged that beginning in
2011 and continuing until 2017, former Senior Warden John Rupert, Assistant
Warden Jeffery Richardson, Food Service Captain Modesto Urbina, Senior
Grievance Investigator Bennie Coleman, Doctor Paul Shrode, Practice
Manager Pamela Pace, Livingston, and Collier intentionally and maliciously
subjected him to cruel and unusual punishment, including numerous health-
and-life-threatening conditions, while he was incarcerated in administrative
segregation at the TDCJ’s Coffield Unit. The district court dismissed all of
Fountain’s claims with prejudice as frivolous and for failure to state a claim
upon which relief may be granted.
      We review de novo the dismissal of a complaint under § 1915A(b)(1) as
both frivolous and for failure to state a claim. Green v. Atkinson, 623 F.3d 278,
280 (5th Cir. 2010). A complaint is frivolous if it lacks an arguable basis in
either law or fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A complaint
fails to state a claim upon which relief may be granted if, taking the plaintiff’s
allegations as true, he could prove no set of facts in support of his claim that
would entitle him to relief. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.
1999). At this stage of the proceedings, Fountain’s factual allegations are
assumed to be true, even if they are doubtful in fact. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
      Based on our de novo review of the record, with the exception of his
allegations of inadequate nutrition, Fountain has failed to show that the
district court erred in dismissing his claims related to the adequacy, quality,


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and safety of the food, drinks, condiments, utensils, and cups provided while
he was incarcerated at the Coffield Unit; his claims related to the adequacy of
clean clothing; his claims that he was denied timely and effective medical care
for his serious medical conditions; and his 42 U.S.C. § 1985 claims. See Farmer
v. Brennan, 511 U.S. 825, 832, 834 (1994); Harris, 198 F.3d at 156; Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Kimble v. D.J. McDuffy, Inc., 648
F.2d 340, 347 (5th Cir. 1981) (en banc).        Further, Fountain’s sparse and
conclusional allegations regarding his electrocutions and the TDCJ’s state-
wide use of common showers and failure to issue protective shower shoes were
insufficient to state a claim for relief. See Coleman v. Lincoln Parish Det. Ctr.,
858 F.3d 307, 309 (5th Cir. 2017). Therefore, the district court’s dismissal of
these claims is affirmed.
      However, Fountain’s allegations, when taken as true, were sufficient to
state an Eighth Amendment claim against Rupert, Richardson, and Coleman
for subjecting him to extreme shower water temperatures and unsanitary
prison conditions, as well as against Rupert and Richardson for subjecting him
to sleep deprivation and excessive noise and Rupert, Richardson, Coleman, and
Urbina for depriving him of adequate nutrition resulting in extreme weight
loss and other nutritional issues. See Farmer, 511 U.S. at 834; Gates v. Cook,
376 F.3d 323, 338 (5th Cir. 2004); Harper v. Showers, 174 F.3d 716, 720 (5th
Cir. 1999). Fountain’s allegations were likewise sufficient to state an Eighth
Amendment claim against Rupert, Richardson, Coleman, Livingston, and
Collier for subjecting him to extreme cell temperatures. See Yates v. Collier,
868 F.3d 354, 360 (5th Cir. 2017); Hinojosa v. Livingston, 807 F.3d 657, 666-68
(5th Cir. 2015).     Moreover, although Fountain’s allegations regarding the
denial of adequate showers, alone, may not have been sufficient to state an
Eighth Amendment claim, when considered with his allegations regarding the
unsanitary prison conditions and the defendants’ attempt to discourage


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                                 No. 18-40920

showers by subjecting him to extreme shower water temperatures, the
allegations had the “mutually enforcing effect” of depriving Fountain of the
basic elements of hygiene. See Wilson v. Seiter, 501 U.S. 294, 304 (1991);
Daigre v. Maggio, 719 F.2d 1310, 1312 (5th Cir. 1983). Therefore, the district
court erred in dismissing these claims pursuant to § 1915A(b)(1). See Harris,
198 F.3d at 156.
      The district court also erred in dismissing Fountain’s claims against
Rupert, Richardson, and Coleman regarding his long-term placement in
administrative segregation.     Although the district court determined that
Fountain’s allegations were insufficient to state a Fourteenth Amendment
claim because he failed to show that his placement presented an atypical and
significant hardship in relation to the ordinary incidents of prison life, see
Sandin v. Conner, 515 U.S. 472, 484 (1995), the district court did not analyze
the severity of the restrictive conditions or the duration of Fountain’s
incarceration in administrative segregation, see Wilkerson v. Goodwin, 774
F.3d 845, 855 (5th Cir. 2014).      The district court also failed to address
Fountain’s Eighth Amendment challenge to the conditions of his confinement
in the administrative segregation cells.
      The district court did not analyze Fountain’s claims regarding the
TDCJ’s indigent mail policy under the framework set forth in Turner v. Safley,
482 U.S. 78 (1987), and Fountain’s allegations, when taken as true, were
sufficient to state First and Fourteenth Amendment claims against Livingston
and Collier. Therefore, the district court erred in dismissing these claims
pursuant to § 1915A(b)(1). See Harris, 198 F.3d at 156.
      Because Fountain’s claims related to toxic smoke inhalation, screenless
windows, and the denial of oral hygiene products were not properly raised or
considered in the district court, we need not consider them for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.


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                                 No. 18-40920

1999). Likewise, we do not consider Fountain’s claims against Jeffery Catoe,
Jacinta Assava, Deandra Martin, Carri Stevenson, Gaye Karriker, and Susan
Mullinax because they were not named in the operative amended complaint.
See id.
      Fountain also contends that the district court abused its discretion in
denying his multiple motions for the appointment of counsel.            Because
Fountain failed to set forth exceptional circumstances warranting the
appointment of counsel, the district court’s denial of his motions was not an
abuse of discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987); Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      Finally, Fountain contends that the magistrate and district court judges
abused their discretion by failing to recuse themselves from the case. Because
Fountain’s allegations of bias and prejudice stem from the judges’ actions in
the course of judicial proceedings, he cannot show an abuse of discretion. See
United States v. Scroggins, 485 F.3d 824, 830 (5th Cir. 2007).
      Accordingly, the district court’s judgment is AFFIRMED IN PART and
VACATED and REMANDED IN PART for further proceedings consistent with
this opinion.   Fountain’s motion to file an amended appellant’s brief is
GRANTED; his motion to withdraw his motions to appoint counsel, for judicial
notice, and for the emergency appointment of counsel is GRANTED; his
motions to allow attachments to his appellant’s brief as an appendix, to file a
supplemental appellant’s brief, and to expedite the appeal are DENIED AS
MOOT.




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