     Case: 12-50696       Document: 00512153508         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013
                                     No. 12-50696
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL LYNN RANDELL,

                                                  Plaintiff-Appellant

v.

JASON RIOS, Lieutenant of Correction, Connally Unit; FREDERICK
SWENSON, Sergeant of Corrections, Connally Unit; ELDA CANTU, Captain of
Corrections, Connally Unit; TEOFILO RAMIREZ, Correctional Officer III,
Connally Unit; JENNIFER MEJIA, Correctional Officer III, Connally Unit;
JEFFERY MARTON, Warden, Connally Unit,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-432


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Michael Lynn Randell, Texas prisoner # 632924, seeks authorization to
proceed in forma pauperis (“IFP”) on appeal.                His motion challenges the
certification by the magistrate judge (“MJ”), ruling by consent of the parties, that
his appeal from the grant of summary judgment to the defendants and dismissal


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50696

of his § 1983 complaint was not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 201–02 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3) (“An appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken
in good faith.”). Our inquiry into whether this appeal is taken in good faith is
limited to whether the appeal involves any nonfrivolous issue. Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
      Randell contends, generally, that genuine issues of material fact remain,
and reasons, accordingly, that the case should not have been resolved on
summary judgment. His only specific contention is that the MJ erred in electing
not to listen to the recording of the disciplinary hearing, which is not in the
record, but would establish, according to Randell, that the defendants conspired
to retaliate against him. To the extent he is challenging the MJ’s denial of his
motion to compel production of the audiotape or a transcript of the hearing, his
challenge is unavailing. Randell alleged in the district court that the tape would
show that hearing officer Elda Cantu (1) dissuaded a witness from testifying
because the witness’s explanation of events preceding the use of force differed
from that of defendants Rios and Swenson, and (2) did not permit Randell to call
as a witness an officer who would have testified that he investigated a previous
disciplinary charge against Randell and found it to be invalid. If true, such
allegations are relevant to his excessive force and retaliation claims, but,
notably, would not have rebutted the MJ’s findings that the cause of the use of
force and the basis of the disciplinary charge was Randell’s refusal to go to his
cell, which refusal he concedes. Nor would the audiotape have established, even
if Randell’s allegations are true, that Cantu’s actions were motivated by a desire
to retaliate rather than to focus on the disciplinary charge at hand, or that she
would have permitted the testimony but for her alleged motive of retaliation.
For those reasons, Randell has failed to show that the district court abused its
discretion in denying his motions seeking production of the audiotape or



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                                 No. 12-50696

transcript of the disciplinary hearing. See Atkinson v. Denton Pub. Co., 84 F.3d
144, 148 (5th Cir. 1996).
      Moreover, Randell fails to address the MJ’s detailed findings that Randell
showed no more than de minimis injuries and failed to allege, much less show,
that Cantu and Marton knew of and disregarded a substantial risk to his health
or safety. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). Randell also
does not rebut the MJ’s determination that he failed to show a retaliatory motive
or the absence of a legitimate motive for the defendants’ actions such that a
retaliatory motive plausibly could be inferred. See Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995).
      Having failed to address and rebut the findings of the district court,
Randell has not demonstrated that his appeal involves any nonfrivolous issue
suitable for our review. Howard, 707 F.2d at 220. Therefore, we DENY his
motion to proceed IFP on appeal, and we DISMISS his appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24 (“[N]othing prevents the appellate court from sua
sponte dismissing the case on the merits pursuant to 5th Cir. R. 42.2 when it is
apparent that an appeal would be meritless.”); 5TH CIR. R. 42.2.




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