Franklin v. Blair

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10453

BENJAMIN FRANKLIN,

Plaintiff-Appellant

v.

GLENNA S. BLAIR,

Defendant-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:15-CV-164

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Benjamin Franklin, Texas prisoner # 01561085, filed a 42 U.S.C. § 1983
complaint against Glenna S. Blair, a prison official in the James V. Allred Unit
of the Texas Department of Criminal Justice, alleging that she deprived him
of a DVD that he ordered from a Christian bookstore, violating his due process
rights, his right to exercise his religion, and his rights under the Religious
Land Use and Institutionalized Persons Act (RLUIPA). The district court
dismissed one claim in part without prejudice, dismissed his remaining claims

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 17, 2020

Lyle W. Cayce
Clerk
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No. 19-10453
2
with prejudice as frivolous pursuant to 28 U.S.C. § 1915(g), and certified that
an appeal would not be taken in good faith. Franklin now requests leave to
proceed in forma pauperis (IFP) on appeal.
“An appeal may not be taken [IFP] if the trial court certifies in writing
that it is not taken in good faith.” § 1915(a)(3). Franklin’s IFP motion is
construed as a challenge to the district court’s certification decision. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In determining whether a
nonfrivolous issue exists, our inquiry “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). If we uphold the district court’s certification, Franklin must pay the
filing fee, or the appeal will be dismissed for want of prosecution. See Baugh,
117 F.3d at 202. Alternatively, “where the merits are so intertwined with the
certification decision as to constitute the same issue,” we may deny the IFP
motion and dismiss the appeal sua sponte if it is frivolous. Id. at 202 & n.24;
see 5
TH CIR. R. 42.2.
Franklin argues that the district court abused its discretion when it
denied his motion to amend his complaint. The court instructed Franklin that
he could file a motion to amend if he included a copy of the proposed amended
complaint on the proper form. However, Franklin failed to do so. Over a year
later, the district court ordered him to answer a questionnaire concerning his
claims. By requesting a more definite statement through a questionnaire, the
district court gave Franklin an opportunity to amend his complaint. See Eason
v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). Therefore, Franklin has not shown
that the district court abused its discretion when it denied his motion to
amend. See id.
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The district court did not err in holding that Franklin could not raise a
claim concerning the deprivation of property in a § 1983 action because he has
an adequate postdeprivation remedy of a tort action for conversion under Texas
state law. See Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir. 1995). Further,
Franklin has not shown that the deprivation of the DVD prevented him from
engaging in religious activities or from attending religious services. See Turner
v. Safley, 482 U.S. 78, 89 (1987); Baranowski v. Hart, 486 F.3d 112, 120-22
(5th Cir. 2007). In addition, Franklin may not recover damages from Blair in
her individual or official capacity under the RLUIPA. See Opulent Life Church
v. City of Holly Springs, Miss., 697 F.3d 279, 289-90 (5th Cir. 2012). The
district court correctly found that although the statute authorizes prospective
injunctive relief, Franklin did not seek such relief, and his claims were
conclusional. See Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010). Finally,
to the extent that Franklin is raising new claims for the first time on appeal,
this court will not consider new claims or new evidence presented for the first
time on appeal. See Burge v. St. Tammany Parish, 336 F.3d 363, 372 (5th Cir.
2003); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Franklin has not shown that he will raise a nonfrivolous issue on appeal,
and his appeal is frivolous. See Howard, 707 F.2d at 220. Accordingly,
Franklin’s IFP motion is denied and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5
TH CIR. R. 42.2. The
dismissal of this appeal as frivolous and the district court’s dismissal of
Franklin’s § 1983 complaint in part as frivolous count as two strikes under 28
U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64 (2015).
Franklin is warned that once he accumulates three strikes, he may not proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in
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No. 19-10453
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any facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

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