     Case: 16-40061      Document: 00514010835         Page: 1    Date Filed: 05/30/2017




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

                                    No. 16-40061                              FILED
                                  Summary Calendar                        May 30, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
ABELARDO G. GONZALEZ,

                                                 Plaintiff-Appellant

v.

I. TAYLOR, McConnell Unit Inmate Property,

                                                 Defendant-Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:15-CV-46


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Abelardo G. Gonzalez, Texas prisoner # 01622682, appeals the district
court’s dismissal as frivolous and for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) of his 42 U.S.C. § 1983 civil rights
complaint. He contends that the district court erred in severing his claims
against Officer I. Taylor and transferring them to the Corpus Christi Division
of the Southern District of Texas.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40061

      The McConnell Unit is located in the city of Beeville, in Bee County,
Texas. Bee County is part of the Corpus Christi Division of the Southern
District of Texas. The district court did not abuse its discretion in transferring
Gonzalez’s claims against Officer Taylor to the Corpus Christi Division because
the incident occurred there, and Officer Taylor was in that district. See 28
U.S.C. § 1404(a); Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir.
1989).
      According to Gonzalez, the district court did not consider all of his
objections, adopted misstatements of fact, and erred in dismissing his claims
against Officer Taylor as frivolous and for failure to state a claim. A district
court must dismiss a prisoner’s civil rights complaint if, inter alia, it is frivolous
or fails to state a claim for relief. § 1915(e)(2)(B); § 1915A(b)(1). Where the
district court dismisses a complaint under § 1915(e)(2)(B) as both frivolous and
for failure to state a claim, as here, our review is de novo. Samford v. Dretke,
562 F.3d 674, 678 (5th Cir. 2009). A complaint is considered frivolous if it has
no “arguable basis in law or fact.” Id. (internal quotation marks and citation
omitted).
      The district court did not err in holding that Gonzalez failed to allege
sufficient facts to state a claim that Officer Taylor’s actions prejudiced his
position as a litigant in his federal habeas proceeding. See Samford, 562 F.3d
at 678. Gonzalez was able to file two sets of objections in his federal habeas
proceeding. Although Gonzalez identified additional objections that he would
have raised in his habeas proceeding if he had received his legal materials from
Officer Taylor, he did not explain why he needed these legal materials in order
to prepare and file these additional objections.             In addition, Gonzalez
acknowledged that the Carol Young Medical Facility (CYMF) in which he was
incarcerated had a law library and that he had a legal assistant who helped



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                                 No. 16-40061

him prepare pleadings in his habeas proceeding. Gonzalez did not explain why
he needed his legal materials to determine the deadlines for filing a timely
notice of appeal and a timely motion pursuant to Federal Rule of Civil
Procedure 59(e), or why he could not have found the information concerning
these deadlines in the CYMF law library. The district court did not err in
determining that Gonzalez did not allege sufficient facts to state a claim that
he was prevented by Officer Taylor’s actions from filing meaningful objections,
a timely notice of appeal, and a timely Rule 59(e) motion in his habeas
proceeding. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v.
Casey, 518 U.S. 343, 351-53, 356 (1996). The district court correctly held that
an alleged violation of Texas Department of Criminal Justice policies does not
constitute a constitutional violation. See Brewster v. Dretke, 587 F.3d 764, 768
(5th Cir. 2009). Gonzalez’s arguments concerning misstatements of fact and
other alleged errors are conclusional as he does not explain how these alleged
errors are relevant to the issue whether his position as a litigant in the habeas
proceeding was prejudiced by Officer Taylor’s actions. Therefore, Gonzalez has
not shown that the district court erred in dismissing his complaint against
Officer Taylor as frivolous and for failure to state a claim. See Samford, 562
F.3d at 678.
      Finally, Gonzalez contends that the district court erred in denying his
Rule 59(e) motion. The district court did not err in holding that Gonzalez could
not raise in a Rule 59(e) motion the same arguments that had already been
rejected. See Advocare Int’l LP v. Horizon Labs., Inc., 524 F.3d 679, 691 (5th
Cir. 2008). The allegedly new evidence that Gonzalez submitted did not have
any bearing on the issue of whether Gonzalez’s position as a litigant in his
habeas proceeding was prejudiced by Officer Taylor’s actions. Further, the
postjudgment motions that Gonzalez filed in his prior federal habeas



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                                 No. 16-40061

proceeding were denied; the habeas court did not find that the issues raised
had arguable merit. Gonzalez has not shown that the district court abused its
discretion by denying his Rule 59(e) motion. See Dearmore v. City of Garland,
519 F.3d 517, 520 (5th Cir. 2008).
      Gonzalez’s appeal lacks arguable merit and is dismissed as frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. The
dismissal of the instant appeal and the district court’s dismissal of Gonzalez’s
complaint count as strikes for purposes of 28 U.S.C. § 1915(g). See Coleman v.
Tollefson, 135 S. Ct. 1759, 1763 (2015); Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996). Gonzalez is cautioned that if he accumulates three strikes,
he may not proceed in forma pauperis 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).     Gonzalez’s motion for
appointment of counsel is also denied. See Ulmer v. Chancellor, 691 F.2d 209,
212, 213 (5th Cir. 1982).
      APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.




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