     Case: 16-30198      Document: 00514300412         Page: 1    Date Filed: 01/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-30198                                FILED
                                                                            January 9, 2018
                                                                             Lyle W. Cayce
GIRAY C. BIYIKLIOGLU,
                                                                                  Clerk

                                                 Plaintiff-Appellant

v.

ST. TAMMANY PARISH JAIL; U.S. MARSHAL; NICO PATERNOSTRO,
Sheriff's Deputy; DAVID J. HORCHAR, Sheriff's Deputy; SHERIFF JACK
STRAIN, Saint Tammany Parish; GENNY MAY, U.S. Marshall,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1684


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Giray C. Biyiklioglu, federal prisoner # 32447-034, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his complaint filed pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Biyiklioglu
alleged that the defendants were liable for the injuries he sustained when he



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30198

was attacked by his cellmate while he was in custody in the St. Tammany
Parish Jail pursuant to an Intergovernmental Agreement between the United
States Marshals Service and the St. Tammany Parish Jail. The crux of his
complaint was that the defendants failed to protect him from his cellmate when
they knew or should have known of the danger his cellmate presented.
      By moving to procced IFP, Biyiklioglu challenges the district court’s
determination that his appeal is not brought in good faith.         See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Biyiklioglu seeks to argue on appeal that the district court erred by
granting summary judgment in favor of the state defendants “on grounds not
requested by them” and failed to provide him with notice and an opportunity
to respond; that the district court erred by granting summary judgment in
favor of Marshal May without properly considering the allegations raised in
his amended complaint; and that the district court erred by dismissing his
claims against an unidentified marshal for failing to exhaust his
administrative procedures.
      Because the facts surrounding the IFP decision are inextricably
intertwined with the merits of the appeal, we have considered the merits and
conclude that the appeal should be dismissed. See id. at 202 & n.24; 5TH CIR.
R. 42.2. Contrary to Biyiklioglu’s assertion, the state defendants expressly
argued in their motion for summary judgment that Biyiklioglu failed to
exhaust his administrative remedies, and the district court determined that
summary judgment was proper on that basis. In light of his failure to discuss
or challenge that determination and given that he raised in the district court
only “unsubstantiated allegations” that he exhausted his administrative
remedies, Jones v. Lowndes County, Miss., 678 F.3d 344, 348 (5th Cir. 2012)
(internal quotation marks and citation omitted), which were refuted by



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                                No. 16-30198

competent summary judgment evidence, see Cowart v. Erwin, 837 F.3d 444,
451 (5th Cir. 2016), Biyiklioglu has not shown that his appeal of the dismissal
of his claims against the state defendants 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).
      As for his assertion that his amended allegations against Marshal May
were not considered by the district court, that assertion is incorrect. The
magistrate judge (MJ) addressed the amended allegations and expressly
concluded that “[w]ithout additional factual allegations identifying the
foundation for his assertions that May acted with actual knowledge and willful
blindness, [Biyiklioglu’s] conclusory allegations need not be accepted as true
and are insufficient to withstand a motion to dismiss.” The district court
adopted the MJ’s conclusions as its own. Biyiklioglu has not shown that his
amended allegations “raise[d] a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also United States ex
rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir.
2003). Accordingly, he has not shown a nonfrivolous issue for appeal regarding
the district court’s dismissal of his claims against Marshal May for failure to
state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)
& 1915A(b)(1); Howard, 707 F.2d at 220.
      Finally, we do not address whether the Prison Litigation Reform Act’s
exhaustion requirement barred Biyiklioglu’s claims against the deputy
marshal who conducted a review of the St. Tammany Parish Jail because
Biyiklioglu has failed to show that he would raise a nonfrivolous claim against
the deputy marshal.
      Because the appeal lacks arguable merit and is frivolous, see Howard,
707 F.2d at 220, the motion to proceed IFP on appeal is DENIED and the



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                                No. 16-30198

appeal is DISMISSED 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 Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
Biyiklioglu is therefore WARNED 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.




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