     Case: 17-50355      Document: 00514376336         Page: 1    Date Filed: 03/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                      No. 17-50355
                                                                                Fifth Circuit

                                                                              FILED
                                                                          March 7, 2018

JOE CARPENTER,                                                           Lyle W. Cayce
                                                                              Clerk
                                                 Plaintiff-Appellant

v.

FNU ARREDONDO, #0434 San Antonio Police Department,

                                                 Defendant-Appellee


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-188


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       In connection with his appeal of the dismissal of his 42 U.S.C. § 1983
action against San Antonio Police Department officer Hector Arredondo, Joe
Carpenter, Texas prisoner # 510275, moves this court for leave to proceed in
forma pauperis (IFP) as well as for appointment of counsel. Carpenter alleges
that Arredondo violated his rights under the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) and Texas law by writing in a police report
that Carpenter is HIV positive. In denying Carpenter IFP status, the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50355    Document: 00514376336      Page: 2   Date Filed: 03/07/2018


                                 No. 17-50355

court certified that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
      We find no abuse of discretion in the district court’s certification. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). In his cursory IFP motion,
Carpenter notes only that his challenge to the denial of § 1983 relief involves
new evidence and witnesses. This does not suffice to show that his 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). Accordingly, we deny leave to appeal IFP.
      In addition, because the merits of Carpenter’s appeal “are so intertwined
with the certification decision as to constitute the same issue,” we dismiss the
appeal sua sponte as frivolous. Baugh, 117 F.3d at 202 & n.24; see Howard,
707 F.2d at 220; 5TH CIR. R. 42.2. We have previously held that “there is no
private cause of action under HIPAA and therefore no federal subject matter
jurisdiction” over such claims. Acara v. Banks, 470 F.3d 569, 572 (5th Cir.
2006).   To the extent Carpenter relies on Texas law concerning HIPAA
compliance, the relevant state statute likewise precludes a private cause of
action for violations of medical record privacy laws. See TEX. HEALTH & SAFETY
CODE ANN. § 181.201(a). Thus, even taking Carpenter’s factual allegations as
true, they do not assert an actionable claim for § 1983 relief.
      Finally, because we dismiss Carpenter’s appeal as frivolous, there is no
basis for appointing appellate counsel. Accordingly, we deny the motion for
appointment of counsel.
      The dismissal of Carpenter’s § 1983 complaint for failure to state a claim
and the dismissal of this appeal as frivolous each count as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996).   Accordingly, Carpenter is WARNED that if he accumulates three



                                        2
    Case: 17-50355    Document: 00514376336     Page: 3   Date Filed: 03/07/2018


                                 No. 17-50355

strikes, he will not be able to proceed 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).
      IFP STATUS DENIED; APPOINTMENT OF COUNSEL DENIED;
APPEAL DISMISSED; WARNING ISSUED.




                                       3
