IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40644

FREDDIE LEE FOUNTAIN,

Plaintiff-Appellant

v.

RICK THALER, Director, TDCJ-CID, in his Individual and Official Capacity,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:14-CV-145

Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Freddie Lee Fountain, Texas prisoner # 1640115, has filed a motion for 

leave to proceed in forma pauperis (IFP) to appeal the district court’s judgment 

dismissing his civil rights complaint with prejudice pursuant to 28 U.S.C. 

§ 1915A(b)(1). He has also filed a motion for the appointment of appellate 

counsel. The district court denied Fountain’s IFP motion and certified that the 

appeal was not taken in good faith. By moving for IFP status, Fountain is 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 26, 2015

Lyle W. Cayce

Clerk

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challenging the district court’s certification. See Baugh v. Taylor, 117 F.3d 

197, 202 (5th Cir. 1997).

Fountain filed suit on behalf of himself and his minor daughter Robin J. 

Fountain (Robin) against Rick Thaler, Director of the Texas Department of 

Criminal Justice, Correctional Institutions Division (TDCJ). He alleged that 

Thaler violated his and Robin’s constitutional rights by establishing and/or 

enforcing TDCJ policies that deprived him of adequate indigent general 

correspondence supplies and postage. Specifically, he alleged that the TDCJ’s 

policy limiting the use of indigent postage to five one-ounce general 

correspondence letters per month conflicted with other TDCJ policies and 

violated his and Robin’s First Amendment right to free speech and Fourteenth 

Amendment due process right to a parent/child relationship. Fountain also 

alleged that the TDCJ’s policy subjected him to cruel and unusual punishment 

in violation of the Eighth Amendment and substantially burdened the practice 

of his religion in violation of the First Amendment and the Religious Land and 

Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc. 

According to Fountain, the district court committed multiple, substantial 

errors when it dismissed his complaint. He argues that the district court erred 

in concluding that his claims based on the RLUIPA and the First and 

Fourteenth Amendments were frivolous and failed to state a claim upon which 

relief may be granted. He also argues that the district court erred in 

dismissing his complaint without addressing his Eighth Amendment claim or 

Robin’s claims, denying his motion for a preliminary injunction, and denying 

his motion for the appointment of counsel. Finally, Fountain argues that: 

(1) the magistrate judge lacked jurisdiction to conduct the Spears v. McCotter, 

766 F.2d 179 (5th Cir. 1985), hearing and issue the report and 

recommendation; (2) the magistrate and district court judges were biased and 

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prejudiced against him; (3) the district court dismissed his complaint without 

affording him an opportunity to fully develop the factual and legal bases of his 

claims; and (4) the magistrate judge and district court disregarded his jury 

demand. 

Prison regulations that encroach on fundamental constitutional rights

are reviewed under the standard set forth in Turner v. Safley, 482 U.S. 78 

(1987). See Prison Legal News v. Livingston, 683 F.3d 201, 214-15 (5th Cir. 

2012); DeMoss v. Crain, 636 F.3d 145, 156 (5th Cir. 2011). A prison regulation 

“is valid if it is reasonably related to legitimate penological interests.” Turner, 

482 U.S. at 89. The district court did not analyze Fountain’s First and 

Fourteenth Amendment claims under the framework set forth in Turner. 

Because Thaler did not file a responsive pleading and there is no transcript of 

the Spears hearing, the record is not sufficiently developed to determine 

whether the challenged policy was reasonably related to a legitimate and 

neutral penological interest. See Turner, 482 U.S. at 89. Further, accepting 

Fountain’s allegations as true, they were sufficient to state a claim under the 

First and Fourteenth Amendments. See Harris v. Hegmann, 198 F.3d 153, 156 

(5th Cir. 1999). Therefore, the district court erred in dismissing these claims 

pursuant to § 1915A(b)(1).

Although the district court did not address Fountain’s Eighth 

Amendment claim, it implicitly concluded that the claim was frivolous and 

failed to state a claim upon which relief may be granted. Because the record 

is not sufficiently developed on this issue and Fountain’s Eighth Amendment 

claim is intertwined with the merits of his First and Fourteenth Amendment 

claims, the district court erred in summarily dismissing the claim pursuant to 

§ 1915A(b)(1).

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The district court also erred in dismissing Fountain’s RLUIPA claim 

pursuant to § 1915A(b)(1). Although Fountain did not specifically allege in his 

complaint that he was confined in administrative segregation, he did allege 

that his only means of exercising and growing in his religion was through the 

mail because he could not attend church and chaplains and pastors did not 

visit his cell each week. He also alleged that the TDCJ’s policy repeatedly 

forced him to choose between corresponding with Robin and practicing his 

religion. Accepting Fountain’s allegations as true, they were sufficient to state 

a claim under the RLUIPA. See Adkins v. Kaspar, 393 F.3d 559, 567-71 (5th 

Cir. 2004); Harris, 198 F.3d at 156. 

Moreover, Fountain’s allegations that Thaler knowingly and maliciously 

established and/or enforced the TDCJ policy that deprived him of adequate 

indigent general correspondence supplies and postage in violation of the First, 

Fourteenth, and Eighth Amendments were sufficient to state a claim against 

Thaler. See Harris, 198 F.3d at 156; Thompkins v. Belt, 828 F.2d 298, 304 (5th 

Cir.1987). Therefore, the district court erred in dismissing Fountain’s claims 

against Thaler pursuant to § 1915A(b)(1). 

Fountain’s remaining arguments, however, lack merit. Because 

Fountain was proceeding pro se, he did not have the authority to bring claims 

on behalf of Robin. See Sprague v. Dep’t of Family and Protective Services, 547 

F. App’x 507, 508 (5th Cir. 2013), cert. denied, 134 S. Ct. 1339 (2014). His 

allegations that TDCJ officials denied him access to the courts are belied by 

his prolific filings in both the district court and this court, and he cannot show 

that the district court abused its discretion by denying his motion for a 

preliminary injunction. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 

2009). The district court’s denial of his motion for the appointment of counsel 

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was not an abuse of discretion because he failed to set forth exceptional 

circumstances warranting the appointment of counsel. See Cupit v. Jones, 835 

F.2d 82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 

1982). The magistrate judge was authorized to conduct the Spears hearing and 

issue the report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). 

Fountain’s allegations of bias and prejudice stem from the magistrate and 

district court judges’ actions in the course of judicial proceedings, and the 

record does not reflect that either judge displayed a deep-seated antagonism 

against him that would have made a fair judgment impossible. See Liteky v. 

United States, 510 U.S. 540, 555 (1994). The record reflects that Fountain was 

afforded an opportunity to develop his factual allegations and plead his best 

case. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). Finally, the district 

court was authorized by statute to dismiss the suit upon a finding that 

Fountain’s claims were frivolous or failed to state a claim. See § 1915A(a), 

(b)(1). Because a jury has no role as a factfinder in such dismissals, the district 

court did not violate Fountain’s right to a jury trial. See Baranowski v. Hart, 

486 F.3d 112, 126 (5th Cir. 2007). 

In light of the foregoing, the district court’s certification that Fountain’s 

appeal was not taken in good faith is erroneous. Whether the facts ultimately 

establish a claim against Thaler under the RLUIPA or the First, Fourteenth, 

and Eighth Amendments is not a question to be answered at this stage of the 

proceedings. See Howard v. King, 707 F.2d 215, 220-21 (5th Cir. 1983). 

Accordingly, Fountain’s motion to proceed IFP on appeal is granted. The 

district court’s judgment is vacated in part and remanded for further 

proceedings. The district court’s judgment is affirmed with respect to all other 

issues. Fountain’s motion for the appointment of appellate counsel is denied 

as unnecessary.

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IFP MOTION GRANTED; APPOINTMENT OF COUNSEL MOTION 

DENIED; JUDGMENT AFFIRMED IN PART, VACATED AND REMANDED 

IN PART. 

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