     Case: 19-40364      Document: 00515411035         Page: 1    Date Filed: 05/11/2020




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

                                                                          FILED
                                                                        May 11, 2020
                                      No. 19-40364                     Lyle W. Cayce
                                                                            Clerk

DAVID TIJERINA,

                                                 Plaintiff-Appellant

v.

REGINALDO F. STANLEY, Medical Provider at Telford Unit; JAMMIE L.
BARKER, Medical Provider at Telford Unit; JOHN DOE, Pharmacist at
Telford Unit; STEVEN L. ROBERTS, Medical Provider at Telford Unit;
PAMELA PACE, Practice Manager at Coffield Unit; PAUL W. SCHRODE,
Medical Provider at Coffield Unit,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:16-CV-102


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       David Tijerina, Texas prisoner # 1672548, moves for leave to proceed in
forma pauperis (IFP) following the dismissal of his 42 U.S.C. § 1983 complaint
in which he alleged deliberate indifference to serious medical needs. The
district court dismissed his complaint as frivolous pursuant to 28 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
    Case: 19-40364     Document: 00515411035      Page: 2   Date Filed: 05/11/2020


                                  No. 19-40364

§ 1915(e)(2)(B)(i). We construe Tijerina’s motion as a challenge to the district
court’s certification that the appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      “A prison official violates the Eighth Amendment’s prohibition against
cruel and unusual punishment when his conduct demonstrates deliberate
indifference to a prisoner’s serious medical needs, constituting an unnecessary
and wanton infliction of pain.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006) (internal quotation marks and citation omitted); see Estelle v. Gamble,
429 U.S. 97, 104-05 (1976). “Deliberate indifference is an extremely high
standard to meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001).
      Tijerina’s argument that he provided evidence to support his claims,
without more, fails to show a nonfrivolous issue challenging the district court’s
decision that his voluminous medical records established that he received
treatment and that he simply disagreed with that treatment. See Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Although Tijerina contends that
the district court ignored his objections and that he should be entitled to
discovery, the district court extensively addressed Tijerina’s objections,
including his requests for discovery. Tijerina does not state which objection
the district court ignored or what evidence he would seek in discovery. His
vague assertions do not suffice to show nonfrivolous issues for appeal. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Tijerina also contends that
the district court erred for the reasons stated in his objections to the magistrate
judge’s recommendation. To the extent that Tijerina attempts to incorporate
by reference arguments and issues raised in the district, he may not do so. See
United States v. Abdo, 733 F.3d 562, 568 (5th Cir. 2013).




                                        2
    Case: 19-40364    Document: 00515411035     Page: 3   Date Filed: 05/11/2020


                                 No. 19-40364

      This appeal lacks arguable legal merit and is, therefore, frivolous. See
Howard, 707 F.2d at 220. Tijerina’s motion to proceed IFP is DENIED, and
we DISMISS his appeal as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH
CIR. R. 42.2.
      The district court’s dismissal of the complaint and this court’s dismissal
of his appeal as frivolous count as two strikes under § 1915(g). See Coleman v.
Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). A prior § 1983 action filed by Tijerina was dismissed
as frivolous pursuant to § 1915(e). See Tijerina v. Catoe, No. 6:17-CV-265 (E.D.
Tex. Jan. 24, 2018). That dismissal also counts as a strike under § 1915(g).
See Adepegba, 103 F.3d at 387-88. Because he now has three strikes, Tijerina
is BARRED from proceeding IFP in any civil action or appeal filed in a court of
the United States while he is incarcerated or detained in any facility unless he
is under imminent danger of serious physical injury. See § 1915(g); Brewster
v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009).




                                       3
