Opinion

Ibenyenwa v. Wells

Court
Court of Appeals for the Fifth Circuit
Filed
Feb 10, 2022
Status
Unpublished
Nature of suit
Prisoner w/ out Counsel
Cited by
0 cases
Authority
More cited than 6.7%

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.

2

Case: 21-40241 Document: 00516197522 Page: 3 Date Filed: 02/10/2022

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

3

Case: 21-40241 Document: 00516197522 Page: 4 Date Filed: 02/10/2022

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).

4

Case: 21-40241 Document: 00516197522 Page: 5 Date Filed: 02/10/2022

No. 21-40241

IFP DENIED; APPEAL DISMISSED; THREE-STRIKES

BAR IMPOSED.

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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