     Case: 13-40601      Document: 00512511340         Page: 1    Date Filed: 01/24/2014




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

                                                                              FILED
                                    No. 13-40601                       January 24, 2014
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk


JAVIER L. OLIVA,

                                                 Plaintiff−Appellant,

versus

WARDEN J. RUPERT; UNKNOWN PARTY, Transporting Officer #1;
UNKNOWN PARTY, Transporting Officer #2;
LIEUTENANT UNKNOWN MATTHEWS;
LIEUTENANT UNKNOWN CORN; JOHNSON UNKNOWN,

                                                 Defendants−Appellees.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:12-CV-349




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       Javier Oliva, Texas prisoner # 1409172, appeals the dismissal of his in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40601

forma pauperis 42 U.S.C. § 1983 suit pursuant to 28 U.S.C. § 1915A(b)(1) as
frivolous and for failure to state a claim. In his first amended complaint, Oliva
raised Eighth Amendment claims against Warden J. Rupert and two unnamed
transporting officers arising from Oliva’s fall while exiting a prison van.
      A complaint is frivolous if it lacks “an arguable basis in law or fact,” and
dismissal on that ground is reviewed for abuse of discretion. Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999). Dismissal for failure to state a claim is
reviewed de novo, applying the standard used to review a dismissal under Fed-
eral Rule of Civil Procedure 12(b)(6). Hart v. Hairston, 343 F.3d 762, 763−64
(5th Cir. 2003).
      “To survive a motion to dismiss, a complaint must contain sufficient fac-
tual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks
and citation omitted). “Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). “[C]onclusory allegations or legal conclusions mas-
querading as factual conclusions will not suffice to prevent a motion to dis-
miss.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.
1993). Because the district court dismissed the complaint both as frivolous and
for failure to state a claim, the dismissal is reviewed de novo. See Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Oliva’s allegations against the two transporting officers state, at most,
claims for negligence and therefore not valid § 1983 claims. See Daniels v.
Williams, 474 U.S. 327, 332-36 (1986). Oliva does not allege facts showing
either that Rupert was directly involved in the events at issue or that there
was a sufficient causal connection between Rupert’s conduct and those events.



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                                  No. 13-40601

See Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). Nor has Oliva
pleaded facts sufficient to state a valid claim that Rupert failed to supervise or
train the transporting officers. See Goodman v. Harris Cnty., 571 F.3d 388,
395 (5th Cir. 2009). Finally, though Oliva contends that the district court erred
by denying him leave to amend his complaint for a second time, he fails to show
that the court abused its discretion, particularly given the futility of the claims
that he sought to add through the amendment. See FED. R. CIV. P. 15(a)(2);
Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005).
      The appeal is without arguable merit and is DISMISSED as frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous and the district court’s dismissal as
frivolous and for failure to state a claim count as one strike each for purposes
of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
We caution Oliva that once 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). Oliva’s motion for appointment of counsel is DENIED.




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