     Case: 16-40658      Document: 00514472093         Page: 1    Date Filed: 05/14/2018




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

                                                                                 FILED
                                      No. 16-40658                           May 14, 2018
                                                                            Lyle W. Cayce
Consolidated with 16-41112                                                       Clerk


ANTHONY BOYD,

                                                 Plaintiff-Appellant

v.

JOE D. DRIVER, Warden, Federal Correctional Institution Three Rivers;
PHILLIP CHILDS, Associate Warden, Federal Correctional Institution Three
Rivers; MIKE DUNGAN, Associate Warden, Federal Correctional Institution
Three Rivers; D. MAUNE, Captain; THOMAS WATSON, Lieutenant;
E. THOMPSON, Lieutenant; JOHNNY C. PONCE, Corrections Officer;
J. SHIPMAN, Corrections Officer; DAVID CHARO, Corrections Officer;
C. SCHMALE, Corrections Officer; RICHARD CASTILLO, Corrections
Officer; R. E. TUTTLE, Corrections Officer; ELLIE ANZALDUA, Special
Investigations Technician,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 6:06-CV-22


Before ELROD, GRAVES, and HO, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40658    Document: 00514472093      Page: 2   Date Filed: 05/14/2018


                                  No. 16-40658


      Anthony Boyd, federal prisoner # 42603-054, moves for leave to proceed
in forma pauperis (IFP) on appeal from the orders and judgment dismissing on
summary judgment his Bivens v. Six Unknown Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), suit as well as from the orders denying his
various post-judgment motions, including his motions under Federal Rule of
Civil Procedure 60(b).      Boyd challenges the district court’s denial of his
IFP motion on the ground that his appeal was not taken in good faith.
See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5); Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
      Our inquiry into Boyd’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 citations omitted). We need not consider whether a nonfrivolous
issue exists regarding the dismissal of those claims not addressed by Boyd.
See FED. R. APP. P. 28(a)(8); see Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993).
      We review the district court’s summary-judgment dismissal de novo,
under the same standards used by the district court. See Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012). “Summary judgment is proper
if the pleadings and evidence show there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Id.; see FED.
R. CIV. P. 56(a). To overcome summary judgment, Boyd, as the nonmovant,
must set forth specific facts showing the existence of a genuine issue for trial.
See FED. R. CIV. P. 56(c)(1). All facts and reasonable inferences are construed
in Boyd’s favor, and the court must not weigh evidence or make credibility
determinations. See Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009).


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                                 No. 16-40658


Nonetheless, Boyd may not rest on mere allegations but must point to specific
facts and explain how they support his position. See Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010).
      In challenging the district court’s grant of summary judgment on his
claims that the defendants violated his due process rights, and conspired to do
so, by tampering with videotape evidence and perjuring themselves at his
assault trial, Boyd makes only insufficient, conclusory allegations that the
videotape evidence, which is not contained in the record, proves his claims.
See Duffie, 600 F.3d at 371. As Boyd provides no evidence to support his
assertions that the original videotapes, copies of which were provided to him
during discovery, have been withheld or lost, the district court did not err in
declining to consider as evidence Boyd’s description of their contents. See FED.
R. EVID. 1004. Given Boyd’s failure to raise a genuine issue of material fact
regarding whether his constitutional rights were violated, the district court did
not err in holding that the defendants were entitled to summary judgment
based upon qualified immunity. See Johnson v. Deep E. Tex. Reg’l Narcotics
Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (holding that when
plaintiff fails to show that defendant violated his constitutional rights, “no
further inquiry is needed and the defendant is entitled to qualified immunity”).
      Boyd fails to show that the district court, which previously extended the
discovery period to allow Boyd an opportunity to request the original
videotapes, abused its discretion by denying his post-judgment motions to
reopen discovery. See In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 370
(5th Cir. 2016). Nor did the district court abuse its discretion by denying
Boyd’s penultimate Rule 60(b) motion. See Warfield v. Byron, 436 F.3d 551,
555 (5th Cir. 2006).




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                                 No. 16-40658


      Boyd has failed to identify any nonfrivolous issue for appeal, see Howard,
707 F.2d at 220, and we therefore dismiss his appeal as frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous
counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Boyd is cautioned that if he accumulates
three strikes, he may not 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 AND MOTION FOR REMAND DENIED; MOTIONS FOR
LEAVE TO FILE SUPPLEMENTAL BRIEFS AND LATE REPLY BRIEF
GRANTED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.




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