     Case: 15-30796      Document: 00513602755         Page: 1    Date Filed: 07/21/2016




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

                                      No. 15-30796
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 21, 2016

GARY BOUDREAUX,                                                            Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

JAMES M. LEBLANC; DARREL VANNOY; STEPHANIE LAMARTINIERE;
KEVIN BENJAMIN; DAVID VOORHIES; T. LEONARD; D. ANTHONY; J.
DUZANT; S. ADAMS; ORVILLE LAMARTINIERE, JR.; JOSEPH F.G.
LAMARTINIERE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-377


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gary Boudreaux, Louisiana prisoner # 101068, moves for leave to
proceed in forma pauperis (IFP) on appeal from the judgment of the district
court granting the motion to dismiss filed by defendants James M. LeBlanc, N.
Burl Cain, Stephanie Lamartiniere, Kevin Benjamin, David Voorhies, T.
Leonard, Orville Lamartiniere, and Joseph F. G. Lamartiniere, dismissing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30796

without prejudice for lack of service the claims against defendants D. Anthony,
J. Duzant, and S. Adams, and declining to exercise supplemental jurisdiction
over Boudreaux’s state law claims. Boudreaux challenges the district court’s
denial of his IFP motion on the ground that his appeal was not taken in good
faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5); Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
      Our inquiry into Boudreaux’s good faith “is limited to whether the 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). We need not consider whether a nonfrivolous
issue exists regarding the dismissal of those claims not addressed by
Boudreaux. See FED. R. APP. P. 28(a)(8); see Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993).
      This court reviews a Federal Rule of Civil Procedure 12(b)(6) dismissal
de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
A complaint fails to state a claim upon which relief can be granted when it does
not contain “sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted).
      “To prevail on a claim of retaliation, a prisoner must establish (1) a
specific constitutional right, (2) the defendant’s intent to retaliate against the
prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and
(4) causation.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). To
satisfy the element of causation, the prisoner must show that the adverse act
would not have occurred but for the retaliatory motive. Id. “The inmate must
produce direct evidence of motivation or, the more probable scenario, allege a



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                                 No. 15-30796

chronology of events from which retaliation may plausibly be inferred.” Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation marks and
citation omitted). The adverse action against the prisoner must be more than
de minimis. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006).
      Although Boudreaux argues that the disciplinary procedures brought
against him in 2011 and 2012 constituted improper retaliation that deprived
him of his right to Louisiana parole, “the presence of a parole system by itself
does not give rise to a constitutionally protected liberty interest in parole
release.” Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). Moreover,
Boudreaux ignores that the district court rejected his claims of disciplinary
retaliation on the ground that he had failed to allege facts sufficient to
establish causation. See McDonald, 132 F.3d at 231.
      Contrary to Boudreaux’s assertion, the district court did not rely upon
inapposite legal authority to dismiss his claims that defendants Voorhies and
Benjamin retaliated against him by withholding his legal materials; rather,
the district court held that Boudreaux failed to allege that these defendants
committed more than de minimis adverse acts. See Morris, 449 F.3d at 686.
Further, Boudreaux’s complaint offered only conclusory assertions to show
that these defendants intended to retaliate against him by withholding his
legal materials. See McDonald, 132 F.3d at 231; Iqbal, 556 U.S. at 678.
      Boudreaux identifies no constitutional basis for his claim that
defendants Stephanie and Joseph Lamartiniere engaged in nepotism. See FED.
R. APP. P. 28(a)(8); Yohey, 985 F.2d at 225. He likewise fails to show that a
nonfrivolous issue exists regarding whether his complaint states an Eighth
Amendment claim against these two supervisory officials by alleging their
direct involvement in the medical treatment of his shoulder. See Thompkins
v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).



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                                 No. 15-30796

      The IFP motion is DENIED, see Baugh, 117 F.3d at 202 n.24, and
Boudreaux’s appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2.
The district court’s dismissal for failure to state a claim and our dismissal of
this appeal as frivolous each counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64 (2015); Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Boudreaux is CAUTIONED
that, if he accumulates three strikes, he will no longer be allowed 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).




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