     Case: 11-41222     Document: 00511896463         Page: 1     Date Filed: 06/22/2012




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

                                                                            FILED
                                                                           June 22, 2012
                                     No. 11-41222
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RUBEN GUERRERO,
                                                  Plaintiff-Appellant

v.

WADE A. KING, JR., Captain; JAN M. SMITH, Substitute Counsel; CRAIG A.
FISHER, Major; TOVI P. BUTCHER, Major; GREGORY H. OLIVER, Assistant
Warden,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:11-CV-81


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Ruben Guerrero, Texas prisoner # 1635715, moves this court for leave to
appeal in forma pauperis (IFP) following the dismissal of his 42 U.S.C. § 1983
complaint pursuant to 28 U.S.C. § 1915A(b)(1). He argues that although he
clearly set forth an equal protection claim, the magistrate judge failed to
evaluate his claim prior to dismissing the complaint. He also argues that his
claim was not subject to dismissal under § 1915A(b)(1). Guerrero’s motion to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41222   Document: 00511896463      Page: 2   Date Filed: 06/22/2012

                                  No. 11-41222

proceed IFP on appeal is construed as a challenge to the magistrate judge’s
determination that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
      Guerrero’s assertion that the magistrate judge failed to address his equal
protection claim is not frivolous. Although the claim was set forth in the
complaint and at the hearing under Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985), the magistrate judge did not address the claim in the order of dismissal.
We therefore grant Guerrero leave to appeal IFP, and we exercise our discretion
to proceed to the merits of the appeal. See Baugh, 117 F.3d at 202.
      We review the dismissal of a complaint under § 1915A(b)(1) de novo,
accepting the facts alleged in the complaint as true and viewing them in the
light most favorable to the plaintiff. Green v. Atkinson, 623 F.3d 278, 280 (5th
Cir. 2010). A complaint is frivolous if it lacks an arguable basis in law or fact.
Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). We may affirm the
dismissal of Guerrero’s complaint on any basis supported by the record. See
Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).
      To maintain his equal protection claim, Guerrero must prove that he
received treatment different from that received by similarly situated individuals
and that the unequal treatment stemmed from a discriminatory intent. See
Taylor, 257 F.3d at 473. Viewed in the light most favorable to him, the facts of
the instant case are insufficient to raise a nonfrivolous equal protection claim.
Id.; see also Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). Accordingly,
the judgment dismissing the complaint as frivolous is AFFIRMED. Guerrero’s
motion for the appointment of counsel on appeal is DENIED.




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