     Case: 14-40769      Document: 00513038155         Page: 1    Date Filed: 05/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                    No. 14-40769                               May 11, 2015
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
JAIME COVARRUBIAS,

                                                 Plaintiff-Appellant

v.

VICTORIA WALLACE, Correctional Officer 3; JOHN WILSON, Correctional
Officer 3; GABRIEL OBRIGBO, Correctional Officer 3; JANE GLADNEY,
Correctional Officer 3; JANE CHAMBERLAIN, Correctional Officer 3; JOHN
JOHNSON, Sergeant; JOHN MCDOWELL, Captain; JANE CHILDRESS,
Counsel Substitute; R. HERRERA, Assistant Warden; B. GORDY, Warden; C.
LAWSON, Step 2 Signature Authority; JOHN DOE 1, Investigator MUOF;
JOHN DOE 2, Tackler; JOHN DOE 3, Supervisor; JOHN DOE 4, Warden
Designee; JOHN DOE 5, Executive Director; JOHN DOE 6, Regional Director;
JOHN DOE 7, Ombudsman Investigator,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:12-CV-156


Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40769    Document: 00513038155     Page: 2   Date Filed: 05/11/2015


                                 No. 14-40769

      Jaime Covarrubias, Texas prisoner # 939535, filed the instant 42 U.S.C.
§ 1983 suit against several named and unnamed defendants and raised claims
concerning excessive use of force, retaliation, conspiracy, failure to protect,
failure to intervene, supervisory liability, and a bogus disciplinary conviction.
These claims arose after Covarrubias was involved in an altercation with
officers that resulted in disciplinary charges.      Some of his claims were
dismissed prior to trial, and the rest were rejected by a jury. Now, he moves
this court for authorization to proceed in forma pauperis (IFP) on appeal.
      By moving to proceed IFP, Covarrubias is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“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 citation omitted). We may dismiss the
appeal if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      In the brief filed in support of his IFP motion, Covarrubias explains that
he wants to raise appellate arguments concerning the dismissal of issues prior
to trial as well as the claims raised in his motion for new trial. None of these
arguments suffices to show a nonfrivolous appellate claim. His allegations that
an officer improperly detained him do not raise a viable Fourth Amendment
claim, as prisoner claims concerning unreasonable seizures involving the use
of force are analyzed under the Eighth Amendment, not the Fourth. See
Graham v. Conner, 490 U.S. 386, 397 n.10 (1989). Given that the facts alleged
by Covarrubias show that the incident underlying this suit unfolded so quickly
that officers in another area could not have reached him in time to intervene,
he has not raised a nonfrivolous claim under the theory of bystander liability.




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                                 No. 14-40769

See Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013), cert. denied, 134 S.
Ct. 1935 (2014).
      Insofar as Covarrubias asserts that the judge credited certain officers’
statements that they did not see the incident, the record refutes this assertion.
Covarrubias’s claims related to his disciplinary conviction fail because his
capital murder conviction renders him ineligible for mandatory supervision,
thus leaving him with no protected liberty interest in these proceedings. See
Teague v. Quarterman, 482 F.3d 769, 777 (5th Cir. 2007); Cinel v. Connick, 15
F.3d 1338, 1343 (5th Cir. 1994). Similarly, his claims related to his grievance
fail because he has no right to have grievances resolved to his liking. Geiger v.
Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005).
      The record shows that the magistrate judge considered whether
Covarrubias should be shackled at trial and then took steps to minimize any
potential prejudice resulting from these restraints.           Accordingly, no
nonfrivolous appellate claim arises from the decision to restrain him at trial.
See Deck v. Missouri, 544 U.S. 622, 626 (2005); Chavez v. Cockrell, 310 F.3d
805, 809 (5th Cir. 2002). Because there is no indication that “an incorrect
verdict” giving rise to “a substantial injustice” resulted from the jury
instructions, Covarrubias has not shown plain error in connection with his
claims that the judge should have instructed the jury as to the security detail,
deliberate indifference, and de minimis force. See Haupt v. Atwood Oceanics,
Inc., 681 F.2d 1058, 1062 (5th Cir. 1982).      His challenge to the qualified
immunity instructions fails for the same reason. See id.
      Likewise unavailing is Covarrubias’s claim under Batson v. Kentucky,
476 U.S. 79, 96-98 (1986), as the record shows no abuse of discretion in
connection with the rejection of this claim, which was grounded in the judge’s
own assessment of the venire person at issue. See Palmer v. Lares, 42 F.3d



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                                 No. 14-40769

975, 979-80 & n.6 (5th Cir. 1995); Snyder v. Louisiana, 552 U.S. 472, 474
(2008). In the same vein, Covarrubias’s argument that the trial court erred by
denying his challenge for cause to a certain venire member lacks merit because
this individual was rehabilitated, thus leading us to conclude that the
magistrate judge did not abuse her discretion by denying the challenge. See
Wilson v. Johns-Manville Sales Corp., 810 F.2d 1358, 1361 (5th Cir. 1987).
Covarrubias also has not shown that this is the rare case in which a trial court
abused its discretion by excluding evidence that fell under Federal Rule of Civil
Procedure 404(b). See United States v. Shaw, 701 F.2d 367, 386 (5th Cir. 1983).
Finally, Covarrubias’s argument that the verdict is against the great weight of
the evidence fails because our review of the record and his filings shows that
“sufficient evidence was presented in th[e] case to present a jury question, the
resolution of which required close credibility determinations.” See Dotson v.
Clark Equipment Co., 805 F.2d 1225, 1228 (5th Cir. 1986).
      Covarrubias has failed to show that his appeal involves any arguably
meritorious issue. See Howard, 707 F.2d at 220. Accordingly, his motion for
leave to proceed IFP on appeal is denied, and his appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.




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