     Case: 15-30243       Document: 00513450597         Page: 1     Date Filed: 04/04/2016




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

                                       No. 15-30243                                FILED
                                                                                April 4, 2016
                                                                              Lyle W. Cayce
WILLIE TRIPLETT,                                                                   Clerk

                                                  Plaintiff-Appellant

v.

JAMES LEBLANC, Secretary; BURL CAIN, WARDEN, LOUISIANA STATE
PENITENTIARY; TROY PORET, Assistant Warden; CHAD OUBRE,
Lieutenant Colonel; WILLIE RICHARDSON, Major; LEROY ERVIN,
Classification Officer; LESLEY DUPONT, Deputy Warden; JOE
LAMARTINIERE, Outer Camp Warden; CATHY FONTENOT, Assistant
Warden; ROBERT TONY, Chaplain; GARY SUMMERALL, Chaplain;
STEPHANIE LAMARTINIERE, Inmate Minster Supervisor; BARNADINE
ST. CYR, Chaplain,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-243


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Willie Triplett brought suit in district court alleging violations of 42
U.S.C. §§ 1983, 1985, and 1986, the First, Sixth, Eighth, and Fourteenth


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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Amendments, the Americans with Disabilities Act, and a due process violation
under Louisiana law. Prior to this appeal, the district court: (1) declined to
exercise supplemental jurisdiction over Triplett’s state law claims; (2)
dismissed Triplett’s claims against defendant St. Cyr without prejudice for
failure to serve her within 120 days as mandated by Federal Rule of Civil
Procedure 4(m); and (3) granted the defendants’ Rule 12(b)(6) motion,
dismissing Triplett’s suit. In response, Triplett moved for leave to proceed in
forma pauperis. The district court denied his motion and certified that
Triplett’s appeal was not taken in good faith. Triplett now moves this court for
leave to proceed in forma pauperis to appeal the dismissal of his complaint.
      When a district court certifies that an appeal is not taken in good faith,
the appellant may either pay the filing fee or challenge that decision. Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Triplett challenges the decision.
Our inquiry into an appellant’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) (quoting Anders v.
California, 386 U.S. 738 (1967)). If we uphold the district court’s decision, the
appellant must pay the filing fee to continue. Alternatively, if the appeal is
frivolous, we may dismiss it sua sponte. 5th Cir. R. 42.2; Baugh, 117 F.3d at
202 & n.24. Here, Triplett raises myriad issues—several intertwined: we
attempt to address each issue below.
      As an initial matter, Triplett correctly argues that because the
defendants filed their Rule 12(b)(6) motion after they filed their answer to his
suit, the district court’s dismissal was on the pleadings, pursuant to Rule 12(c).
See Rule 12(b); Brunig v. Clark, 560 F.3d 292, 294 (5th Cir. 2009).
Nevertheless, Triplett fails to raise a nonfrivolous issue because this court
reviews Rule 12(c) dismissals de novo, applying the same standards as those



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governing Rule 12(b)(6). Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435,
439 (5th Cir. 2015). Under either 12(b)(6) or 12(c), this court takes Triplett’s
well-pleaded facts as true and views them in the light most favorable to him.
Id. To survive a motion to dismiss, Triplett’s complaint had to “contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
      Triplett’s first argument, that the district court erred when it dismissed
his claims against St. Cyr, is frivolous. An IFP plaintiff who requests service
on the proper defendant “should not be penalized for failure of the Marshal’s
Service to properly effect service of process, where such failure is through no
fault of the litigant.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).
Nevertheless, once such a plaintiff is aware of possible defects in service of
process, he must attempt to remedy them. Id. Triplett does not assert that he
had no notice of the Marshal’s inability to serve St. Cyr. In fact, despite notice
from the magistrate judge’s report and recommendation, Triplett did not take
steps to remedy the defects in service of process. Thus, Triplett fails to show a
nonfrivolous appellate issue with respect to the dismissal of St. Cyr. See
Armant v. Stalder, 351 F. App’x 958, 959 (5th Cir. 2009).
      The allegations surrounding Triplett’s disciplinary conviction fail to
state a federal due process claim because he was not deprived of a liberty or
property interest. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The
punishments Triplett alleged that he received as a result of his disciplinary
conviction—demotion in trustee status, time in a working cell block, and the
loss of his prison job as a minister—“are penalties which do not represent the
type of atypical, significant deprivation in which a state might create a liberty
interest.” Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). And he has
abandoned any argument that his disciplinary hearing violated the Louisiana



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Constitution because he has not briefed the district court’s refusal to exercise
supplemental jurisdiction over these claims. See Brinkmann v. Dall. Cty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Triplett’s assertions that the defendants were aware of job restrictions
that included no prolonged walking, lifting over 25 pounds, working outdoors,
and sports, but that they nevertheless punished him by assigning him to prison
jobs that required him to walk the tiers and to lift objects in excess of 25
pounds, fail to state an Eighth Amendment claim because his facts do not
support a claim that the defendants were deliberately indifferent to his medical
needs. See Farmer v. Brennan, 511 U.S. 825, 837, 847 (1994). His assertions
about injuries he sustained by having to climb in and out of a top bunk that
lacked safety equipment fail to state an Eighth Amendment claim for the same
reason. See id. at 844. And we have previously held that a showing of mere
negligence is not enough to state a constitutional claim. See Coleman v.
Sweetin, 745 F.3d 756, 764-65 (5th Cir. 2014).
      Next, Triplett’s claims about his allegedly lost property due to defendant
Oubre’s refusal to let him pack do not state a due process violation because he
did not assert that a prison official confiscated his property. See Zinermon v.
Burch, 494 U.S. 113, 115 (1990) (stating that under the Parratt/Hudson
doctrine, a deprivation of a constitutionally protected property interest caused
by a state employee’s random, unauthorized conduct does not give rise to a
§ 1983 procedural due process claim unless the state fails to provide an
adequate post deprivation remedy); Marshall v. Norwood, 741 F.2d 761, 763-
64 (5th Cir. 1984) (Louisiana provides an adequate tort post-deprivation
remedy for procedural due process claims relating to negligent or intentional
property loss claims by inmates). Moreover, Triplett’s reliance on a form that
he was able to file claiming the loss of his property belies any assertion that he



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was denied due process in trying to retrieve his property. He had no
constitutional right to a favorable resolution about his lost property. See Geiger
v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
      Triplett’s argument that, as a member of the Church of Christ, his
“forced attendance” at a church service and his punishment for not attending
that service violated the First Amendment’s right to free exercise, fails to state
a First Amendment violation. In Turner v. Safley, the Supreme Court held that
a prison’s actions that impinge an inmate’s First Amendment rights are not
unconstitutional if the actions are “reasonably related to legitimate penological
interests.” 482 U.S. 78, 89 (1987). See also Sossamon v. Lone Star State of
Texas, 560 F.3d 316, 335 (5th Cir. 2009). Under Triplett’s facts, he was required
to attend a community service as part of his inmate job duties as a minister.
Thus, his “forced attendance” was reasonably related to a penological interest.
Further, he was punished for yelling in Chapel (defiance and aggravated
disobedience), not because of his religious affiliation. To the extent that
Triplett argues that he was prevented from attending a particular service due
to his punishment, his punishment was also reasonably related to a penological
interest. Finally, his allegations that Catholic inmates have more opportunity
to worship than do members of the Church of Christ also do not state a
violation. See Baronowski v. Hart, 486 F.3d 112, 123 (5th Cir. 2007) (noting
that the Fourteenth Amendment does not demand that every religious group
within a prison have identical facilities or personnel and that prison officials
need only afford prisoners reasonable opportunity to exercise religious freedom
guaranteed by the Constitution).
      Triplett’s claims that he was denied his right not to attend a church
service and that he was deprived of his personal property without redress both
fail to state a retaliation claim. Triplett was disciplined for defiance and



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aggravated disobedience, not filing a grievance, seeking an accommodation
under the ADA, or refusing to attend church service; his facts do not show that
he was retaliated against for exercising a specific constitutional right. See
Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008); Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995). Nor do his facts state a conspiracy claim under 42 U.S.C.
§ 1983, see Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994), or under
§ 1985, see Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994), because
his facts have failed to show the violation of a constitutional right.
      His claim that he is entitled to nominal or punitive damages is likewise
frivolous because he has failed to show the denial of a constitutional right. See
Hutchins v. McDaniels, 512 F.3d 193, 198 (5th Cir. 2007). Any claim that the
defendants were liable to him under respondeat superior is unavailing. See
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691-94 (1978); Hinojosa v.
Livingston, 807 F.3d 657, 668 (5th Cir. 2015). His claims that the defendants
were liable for failure to train or supervise, or for creating or continuing
unconstitutional policies, fail because his facts fail to show a constitutional
violation. See Whitley v. Hanna, 726 F.3d 631, 648-49 (5th Cir. 2013).
      Finally, Triplett’s alleged facts do not show that he falls under the
purview of the ADA; therefore, his argument that the defendants did not enjoy
Eleventh Amendment immunity from suit in their official capacities on his
ADA claim is frivolous. See Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
      Triplett’s motions for leave to proceed IFP on appeal and for the
appointment of counsel are DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2. The district court’s
dismissal of Triplett’s complaint for failure to state a claim on which relief may
be granted and the dismissal of this appeal as frivolous count as strikes under
28 U.S.C. § 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-



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88 (5th Cir. 1996). Triplett is WARNED that if he accumulates three strikes,
he will not be allowed to proceed IFP in any civil action or appeal unless he is
under imminent danger of serious physical injury. See § 1915(g).




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