     Case: 12-51272       Document: 00512279032         Page: 1     Date Filed: 06/18/2013




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

                                                                            FILED
                                                                           June 18, 2013
                                     No. 12-51272
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

PATRICK A. GUARDIOLA,

                                                  Plaintiff-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; ASSISTANT REGIONAL
DIRECTOR B. ARMSTRONG; ASSISTANT WARDEN J. MARKUM; CAPTAIN
KEVIN L. BENJAMIN; LIEUTENANT JEFFREY FURR, SR.; LIEUTENANT
TERRENCE L. MOORE; SERGEANT DENNIS F. DALY; LIEUTENANT
JOSHUA S. MORALES; SERGEANT ALPHONSO L. STEVENS; RICHARD
TRACY, M.D.,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CV-171


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Patrick A. Guardiola, Texas prisoner # 1644751, seeks leave to proceed in
forma pauperis (IFP) on appeal from a district court judgment granting the
defendants’ summary judgment motion and dismissing his 42 U.S.C. § 1983

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-51272

action against 10 officials and employees of the Texas Department of Criminal
Justice (TDCJ). The district court denied Guardiola’s IFP motion, certifying,
pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a)(3), that the appeal was not taken in good faith.
      By moving in this court for leave to proceed IFP, Guardiola is challenging
the district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). To proceed IFP, a litigant must be economically eligible, and his
appeal must be taken in good faith. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). An appeal is taken in good faith if it raises legal points that are arguable
on the merits and thus nonfrivolous. Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983).
      In support of his motion, Guardiola argues that the district court erred in
finding that the Eleventh Amendment barred his claims for injunctive relief
against Rick Thaler and Bruce Armstrong in their official capacities. Contrary
to this argument, the district court dismissed only claims for damages against
Thaler and Armstrong in their official capacities. Such a dismissal was proper.
See Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
1998).
      As to the claims for injunctive relief against Thaler and Armstrong,
Guardiola’s allegations in his § 1983 complaint stemmed from the way the TDCJ
dining hall policy was implemented on the Marlin Unit; however, Guardiola is
now housed on the Polunsky Unit. Because he has not shown a demonstrated
probability or a reasonable expectation of being returned to the Marlin Unit or
of having the challenged conditions applied to his imprisonment on the Polunsky
Unit, see Oliver v. Scott, 276 F.3d 736, 741-42 (5th Cir. 2002), Guardiola’s claims
for injunctive relief against Thaler and Armstrong in their official capacities do
not raise legal points for appeal that are arguable on the merits. See Howard,
707 F.2d at 220.



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                                   No. 12-51272

      As to the claims that the district court dismissed based on qualified
immunity, Guardiola has not briefed a challenge to the court’s rejection of his
excessive force claim. He has thus abandoned that claim. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Guardiola’s challenge to the district court’s
rejection of his claim about implementation of the TDCJ dining hall policy on the
Marlin Unit does not raise a legal point for appeal that is arguable on the merits,
see Howard, 707 F.2d at 220, because he has not shown the alleged conduct
“violate[d] clearly established statutory or constitutional rights of which a
reasonable person would have known.” Easter v. Powell, 467 F.3d 459, 462 (5th
Cir. 2006)(internal quotation marks and citation omitted); Thompson v. Upshur
Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2001).
      Although Guardiola also argues that the district court erred in finding that
he sued Kevin Benjamin and Jack Markum only as supervisors of the corrections
officers who implemented the dining hall policy, the court dismissed on this basis
solely those claims that were based on the doctrine of respondeat superior or
vicarious liability.   Any other claims that Guardiola raised against these
defendants based on their active involvement in the alleged constitutional
violations were not dismissed based on the doctrine of respondeat superior or
vicarious liability but were instead dismissed when the district court addressed
the merits of Guardiola’s claims.
      As to Guardiola’s challenge to the district court’s rejection of his claim that
Dr. Richard Tracy acted with deliberate indifference to his serious medical
needs, his arguments fail to raise legal points for appeal that are arguable on the
merits. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Stewart v.
Murphy, 174 F.3d 530, 534-35 (5th Cir. 1999). Guardiola’s challenge to the
district court’s rejection of his “state-created danger” claim likewise fails to raise
a nonfrivolous legal point for appeal. See Howard, 707 F.2d at 220. We have
never adopted the state-created danger theory of liability. See Doe v. Covington
Cnty. Sch. Dist., 675 F.3d 849, 863-65 (5th Cir. 2012) (en banc). Even if we had

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                                  No. 12-51272

adopted such a theory, Guardiola did not allege in his § 1983 complaint that he
suffered harm inflicted by a private actor; therefore, the state-created danger
theory is inapposite.
      Guardiola next challenges the district court’s denials of his motion for the
entry of a default judgment against Terrence Moore; his motion to preserve video
recordings; his motion to compel the production of medical records from
September 2011 and a CT scan report from October 2011; his motion to compel
the production of grievances against Alphonso Stevens; and his motion to
supplement the pleadings. First, Guardiola has not shown that the district court
abused its discretion by refusing to grant his motion for the entry of a default
judgment against Moore. Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).
      Second, Guardiola has not shown he was prejudiced by the district court’s
denial of his motion to preserve certain video recordings or compel the
production of the September 2011 medical records and the October 2011 CT scan
report. See Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir. 1984). Third, as
to the grievances filed against Stevens, the district court agreed with the
defendants that Guardiola’s request was overly broad, not reasonably calculated
to lead to the discovery of admissible evidence, and would result in the
production of sensitive information about other inmates. Because Guardiola has
not briefed any challenge to this particular ruling, he has not raised a legal point
for appeal that is arguable on the merits. Howard, 707 F.2d at 220.
      Fourth, Guardiola has not shown that the district court abused its
discretion in denying his motion to supplement the pleadings given that he
sought to add an unexhausted claim against one of the defendants and did not
exhaust that claim until a year after he initiated his § 1983 proceeding. See
Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (noting the
district court’s “inherent power to control its docket and prevent undue delays
in the disposition of pending cases”).



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      Finally, Guardiola observes that the district court’s dismissal of his § 1983
action as frivolous will result in his forfeiture of good conduct time under Texas
Government Code § 498.0045, which provides for the loss of good time credits
when an inmate files frivolous lawsuits in state or federal courts. The district
court, however, did not dismiss Guardiola’s § 1983 action as frivolous; rather, the
court granted the defendants’ summary judgment motion and rejected
Guardiola’s request to proceed IFP on appeal, finding that his appeal was not
taken in good faith. Guardiola has not otherwise briefed how this argument
raises a legal point for appeal that is arguable on the merits. See Howard, 707
F.2d at 220.
      Because Guardiola has not raised an arguable legal point for appeal, see
id., we deny his motion and dismiss his appeal as frivolous. Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2. The dismissal counts as a strike for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996).   Guardiola is cautioned that if he accumulates three strikes under
§ 1915(g) he will not be allowed 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 MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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