     Case: 14-40644      Document: 00513247108         Page: 1    Date Filed: 10/26/2015




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

                                      No. 14-40644                               FILED
                                                                          October 26, 2015
                                                                            Lyle W. Cayce
FREDDIE LEE FOUNTAIN,                                                            Clerk

                                                 Plaintiff-Appellant

v.

RICK THALER, Director, TDCJ-CID, in his Individual and Official Capacity,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:14-CV-145


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Freddie Lee Fountain, Texas prisoner # 1640115, has filed a motion for
leave to proceed in forma pauperis (IFP) to appeal 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 a motion for the appointment of appellate
counsel. The district court denied Fountain’s IFP motion and certified that the
appeal was not taken in good faith. By moving for IFP status, Fountain is



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40644

challenging the district court’s certification. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
      Fountain filed suit on behalf of himself and his minor daughter Robin J.
Fountain (Robin) against Rick Thaler, Director of the Texas Department of
Criminal Justice, Correctional Institutions Division (TDCJ). He alleged that
Thaler violated his and Robin’s constitutional rights by establishing and/or
enforcing TDCJ policies that deprived him of adequate indigent general
correspondence supplies and postage. Specifically, he alleged that the TDCJ’s
policy limiting the use of indigent postage to five one-ounce general
correspondence letters per month conflicted with other TDCJ policies and
violated his and Robin’s First Amendment right to free speech and Fourteenth
Amendment due process right to a parent/child relationship. Fountain also
alleged that the TDCJ’s policy subjected him to cruel and unusual punishment
in violation of the Eighth Amendment and substantially burdened the practice
of his religion in violation of the First Amendment and the Religious Land and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc.
      According to Fountain, the district court committed multiple, substantial
errors when it dismissed his complaint. He argues that the district court erred
in concluding that his claims based on the RLUIPA and the First and
Fourteenth Amendments were frivolous and failed to state a claim upon which
relief may be granted.      He also argues that the district court erred in
dismissing his complaint without addressing his Eighth Amendment claim or
Robin’s claims, denying his motion for a preliminary injunction, and denying
his motion for the appointment of counsel. Finally, Fountain argues that:
(1) the magistrate judge lacked jurisdiction to conduct the Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985), hearing and issue the report and
recommendation; (2) the magistrate and district court judges were biased and



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                                  No. 14-40644

prejudiced against him; (3) the district court dismissed his complaint without
affording him an opportunity to fully develop the factual and legal bases of his
claims; and (4) the magistrate judge and district court disregarded his jury
demand.
      Prison regulations that encroach on fundamental constitutional rights
are reviewed under the standard set forth in Turner v. Safley, 482 U.S. 78
(1987). See Prison Legal News v. Livingston, 683 F.3d 201, 214-15 (5th Cir.
2012); DeMoss v. Crain, 636 F.3d 145, 156 (5th Cir. 2011). A prison regulation
“is valid if it is reasonably related to legitimate penological interests.” Turner,
482 U.S. at 89.      The district court did not analyze Fountain’s First and
Fourteenth Amendment claims under the framework set forth in Turner.
Because Thaler did not file a responsive pleading and there is no transcript of
the Spears hearing, the record is not sufficiently developed to determine
whether the challenged policy was reasonably related to a legitimate and
neutral penological interest. See Turner, 482 U.S. at 89. Further, accepting
Fountain’s allegations as true, they were sufficient to state a claim under the
First and Fourteenth Amendments. See Harris v. Hegmann, 198 F.3d 153, 156
(5th Cir. 1999). Therefore, the district court erred in dismissing these claims
pursuant to § 1915A(b)(1).
      Although the district court did not address Fountain’s Eighth
Amendment claim, it implicitly concluded that the claim was frivolous and
failed to state a claim upon which relief may be granted. Because the record
is not sufficiently developed on this issue and Fountain’s Eighth Amendment
claim is intertwined with the merits of his First and Fourteenth Amendment
claims, the district court erred in summarily dismissing the claim pursuant to
§ 1915A(b)(1).




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      The district court also erred in dismissing Fountain’s RLUIPA claim
pursuant to § 1915A(b)(1). Although Fountain did not specifically allege in his
complaint that he was confined in administrative segregation, he did allege
that his only means of exercising and growing in his religion was through the
mail because he could not attend church and chaplains and pastors did not
visit his cell each week. He also alleged that the TDCJ’s policy repeatedly
forced him to choose between corresponding with Robin and practicing his
religion. Accepting Fountain’s allegations as true, they were sufficient to state
a claim under the RLUIPA. See Adkins v. Kaspar, 393 F.3d 559, 567-71 (5th
Cir. 2004); Harris, 198 F.3d at 156.
      Moreover, Fountain’s allegations that Thaler knowingly and maliciously
established and/or enforced the TDCJ policy that deprived him of adequate
indigent general correspondence supplies and postage in violation of the First,
Fourteenth, and Eighth Amendments were sufficient to state a claim against
Thaler. See Harris, 198 F.3d at 156; Thompkins v. Belt, 828 F.2d 298, 304 (5th
Cir.1987). Therefore, the district court erred in dismissing Fountain’s claims
against Thaler pursuant to § 1915A(b)(1).
      Fountain’s remaining arguments, however, lack merit.               Because
Fountain was proceeding pro se, he did not have the authority to bring claims
on behalf of Robin. See Sprague v. Dep’t of Family and Protective Services, 547
F. App’x 507, 508 (5th Cir. 2013), cert. denied, 134 S. Ct. 1339 (2014). His
allegations that TDCJ officials denied him access to the courts are belied by
his prolific filings in both the district court and this court, and he cannot show
that the district court abused its discretion by denying his motion for a
preliminary injunction. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.
2009). The district court’s denial of his motion for the appointment of counsel




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was not an abuse of discretion because he failed to set forth exceptional
circumstances warranting the appointment of counsel. See Cupit v. Jones, 835
F.2d 82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.
1982). The magistrate judge was authorized to conduct the Spears hearing and
issue the report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Fountain’s allegations of bias and prejudice stem from the magistrate and
district court judges’ actions in the course of judicial proceedings, and the
record does not reflect that either judge displayed a deep-seated antagonism
against him that would have made a fair judgment impossible. See Liteky v.
United States, 510 U.S. 540, 555 (1994). The record reflects that Fountain was
afforded an opportunity to develop his factual allegations and plead his best
case. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). Finally, the district
court was authorized by statute to dismiss the suit upon a finding that
Fountain’s claims were frivolous or failed to state a claim. See § 1915A(a),
(b)(1). Because a jury has no role as a factfinder in such dismissals, the district
court did not violate Fountain’s right to a jury trial. See Baranowski v. Hart,
486 F.3d 112, 126 (5th Cir. 2007).
      In light of the foregoing, the district court’s certification that Fountain’s
appeal was not taken in good faith is erroneous. Whether the facts ultimately
establish a claim against Thaler under the RLUIPA or the First, Fourteenth,
and Eighth Amendments is not a question to be answered at this stage of the
proceedings.   See Howard v. King, 707 F.2d 215, 220-21 (5th Cir. 1983).
Accordingly, Fountain’s motion to proceed IFP on appeal is granted. The
district court’s judgment is vacated in part and remanded for further
proceedings. The district court’s judgment is affirmed with respect to all other
issues. Fountain’s motion for the appointment of appellate counsel is denied
as unnecessary.



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                             No. 14-40644

    IFP MOTION GRANTED; APPOINTMENT OF COUNSEL MOTION
DENIED; JUDGMENT AFFIRMED IN PART, VACATED AND REMANDED
IN PART.




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