holding that a prisoner is entitled only to a reasonably adequate opportunity to file nonfrivolous claims
How later courts described this case
- holding that a prisoner is entitled only to a reasonably adequate opportunity to file nonfrivolous claims
Written by the judges who cited it.
The opinion
Case: 21-40241 Document: 00516197522 Page: 1 Date Filed: 02/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 10, 2022
No. 21-40241
Lyle W. Cayce
Clerk
Michael Jerrial Ibenyenwa,
Plaintiff—Appellant,
versus
Elroddrick B. Wells, Sr., Librarian at Telford Unit; Tracy L.
Smith, Correctional Officer at Telford Unit; Samuel W. Nations,
Correctional Officer at Telford Unit; Chad Doddy, Correctional Officer at
Telford Unit; Michael E. Alsobrook, Assistant Warden at Telford
Unit; Office of the Attorney General; Freddrick
Gooden; Sandra Clark; Carl McKellar; Lonnie
Townsend; Wade Alexander; Texas Board of Criminal
Justice; Todd E. Harris,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:18-CV-68
Case: 21-40241 Document: 00516197522 Page: 2 Date Filed: 02/10/2022
No. 21-40241
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
Michael Jerrial Ibenyenwa, Texas prisoner # 1638105, moves for leave
to appeal in forma pauperis (IFP) after the district court dismissed his 42
U.S.C. § 1983 action and certified that an appeal was not in good faith. By
moving to appeal IFP, Ibenyenwa challenges that certification. See McGarrah
v. Alford, 783 F.3d 584, 584 (5th Cir. 2015). Our inquiry is limited to
determining whether Ibenyenwa identifies any nonfrivolous issue for appeal.
See id.; Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We may dismiss a
meritless appeal. Baugh, 783 F.3d at 202 n.24; see 5th Cir. R. 42.2.
Ibenyenwa contends that the defendants retaliated against him in
various ways for filing more than 50 grievances and abusive and insulting
complaints about their management of the law library. Prison officials may
not retaliate against an inmate for exercising his right to complain about
misconduct or to gain access to the courts. See Woods v. Smith, 60 F.3d 1161,
1164-66 (5th Cir. 1995).
Ibenyenwa engaged in a vexatious pattern of filing petty grievances
about every aspect of the law library that displeased him or failed to promptly
accommodate his every request. The grievances were accompanied by
vulgar, insulting, and abusive complaints directed at library staff. We
seriously doubt that frivolous grievances and abusive complaints are a
legitimate, good-faith exercise of First Amendment rights so as to be
protected from retaliation. See Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th
Cir. 1997) (holding that a prisoner is entitled only to a reasonably adequate
opportunity to file nonfrivolous claims); Jackson v. Cain, 864 F.2d 1235, 1249
(5th Cir. 1989) (indicating that the use of a grievance procedure would not be
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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No. 21-40241
justified if a complaint to prison officials is “not in good faith”). We
therefore merely assume without deciding that Ibenyenwa was exercising
legitimate First Amendment rights.
Regardless, the record in this case exemplifies the need to view
prisoners’ retaliation claims “with skepticism, lest federal courts embroil
themselves in every disciplinary act that occurs in state penal institutions.”
Woods, 60 F.3d at 1166 (internal quotation marks and citation omitted).
Ibenyenwa’s pleadings demonstrate a transparent bid to “inappropriately
insulate [himself] from disciplinary actions by drawing the shield of
retaliation around [him.]” Woods, 60 F.3d at 1166. He essentially “dared”
the defendants to respond to his persistent and abusive attacks by promising
that every unfavorable action would be regarded as actionable retaliation.
Even weighing this necessary skepticism against the liberal construction
afforded pro se pleadings, we agree with the district court that Ibenyenwa’s
conclusional assertions are inadequate to state a claim of retaliation under
Federal Rule of Civil Procedure 12(b)(6). See Woods, 60 F.3d at 1166. Nor
do they present a nonfrivolous issue for appeal. See Audler v. CBC Innovis
Inc., 519 F.3d 239, 255 (5th Cir. 2008).
In addition, an act done with a retaliatory motive “against a prisoner
is actionable only if it is capable of deterring a person of ordinary firmness
from further exercising his constitutional rights.” Morris v. Powell, 449 F.3d
682, 684-86 (5th Cir. 2006). Despite the defendants’ actions, Ibenyenwa’s
filing of grievances and abusive complaints continued unabated, even during
the instant litigation. Any assertion that the defendants “chilled” Ibenyenwa
from exercising a constitutional right is belied by Ibenyenwa’s own actions.
Further, even if Ibenyenwa were deemed to have stated a plausible
claim of retaliation, the district court’s application of qualified immunity
provided an alternative basis for judgment. See Lincoln v. Turner, 874 F.3d
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No. 21-40241
833, 847 (5th Cir. 2017) (holding that claims could be barred by qualified
immunity although they survived Rule 12 dismissal). “Qualified immunity
is applicable unless the official’s conduct violated a clearly established
constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Ibenyenwa asserts vaguely that the district court’s application of qualified
immunity was “conclusory.” Accordingly, he has not alleged that he had a
“clearly established” right to file his abusive grievances or complaints or that
the defendants actions were an objectively unreasonable response to them.
His conclusional challenge to qualified immunity presents no nonfrivolous
issue for appeal. See Audler, 519 F.3d at 255.
Ibenyenwa also contends that the district court erred by refusing to
allow him to file first and third amended complaints, by wrongly affording
Eleventh Amendment immunity to a state entity (that was not named in the
operative complaint), and by declining to exercise supplemental jurisdiction
over a state law claim about the deduction of funds from a prison account.
These issues also present no nonfrivolous issue for appeal.
Accordingly, the IFP motion is DENIED and the appeal is
DISMISSED AS FRIVOLOUS. See Baugh, 783 F.3d at 202 n.24; 5th
Cir. R. 42.2. This dismissal and the district court’s dismissal count as
strikes under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S. 532,
537-38 (2015). In addition, in 2015, a district court imposed a strike against
Ibenyenwa for filing a similar frivolous § 1983 action. See Ibenyenwa v.
Carrington, No. 5:12-CV-150 (N.D. Tex. July 14, 2015) (unpublished).
Because Ibenyenwa has now accumulated a total of three strikes, he is
BARRED from proceeding 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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No. 21-40241
IFP DENIED; APPEAL DISMISSED; THREE-STRIKES
BAR IMPOSED.
5