Kerry Tipps v. Richard Wathen
697 F. App'x 328
| 5th Cir. | 2017Background
- Kerry Tipps, a Texas prisoner, sued prison employees alleging they failed to protect him and conspired to have other inmates attack him.
- The district court served interrogatories; after receiving Tipps’s responses it dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
- Tipps appealed and filed a motion to proceed in forma pauperis (IFP) on appeal; the district court certified the appeal was not taken in good faith.
- The Fifth Circuit limited review to whether the appeal presented legal points arguable on the merits (i.e., not frivolous).
- The court found Tipps’s allegations conclusory: he did not identify specific incidents, facts showing a conspiracy, or facts showing officials were subjectively aware of a substantial risk to his safety.
- The Fifth Circuit denied leave to proceed IFP, dismissed the appeal as frivolous, and warned that this dismissal counts as a strike under 28 U.S.C. § 1915(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal is taken in good faith allowing IFP on appeal | Tipps argues prison officials condoned a "culture of violence" and failed to protect inmates | District court concluded claims were wholly conclusory and frivolous | Denied IFP; appeal dismissed as frivolous |
| Whether complaint stated a nonfrivolous failure-to-protect claim | Tipps contends officials were deliberately indifferent and conspired to endanger him | Officials argue no specific facts or incidents alleged to show deliberate indifference or conspiracy | Claims lack plausible factual support and are frivolous |
| Whether district court’s certification decision is reviewable on appeal | Tipps sought review limited to trial court’s reasons for certification | Court applies precedent limiting inquiry to arguable legal points on the merits | Limited review; no arguable points found |
| Whether dismissal counts as a strike under § 1915(g) | Tipps likely argues against strike consequences implicitly by seeking IFP | Court cites precedent treating frivolous dismissals as strikes | Dismissal counts as a strike; warned about § 1915(g) bar |
Key Cases Cited
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (procedures for challenging district court’s certification of lack of good faith on appeal)
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (good-faith inquiry limited to whether appeal raises legal points arguable on the merits)
- Neitzke v. Williams, 490 U.S. 319 (1989) (action is frivolous if it lacks an arguable basis in law or fact)
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (appellant must identify district court error to preserve claim on appeal)
- Coleman v. Lincoln Parish Det. Ctr., 858 F.3d 307 (5th Cir. 2017) (standards for evaluating failure-to-protect claims)
- Longoria v. Texas, 473 F.3d 586 (5th Cir. 2006) (deliberate indifference requires subjective awareness of excessive risk)
- Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (frivolous dismissals count as strikes under § 1915(g))
- Farmer v. Brennan, 511 U.S. 825 (1994) (prisoner must show conditions pose substantial risk and officials acted with deliberate indifference)