     Case: 15-20685      Document: 00514187177         Page: 1    Date Filed: 10/06/2017




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

                                      No. 15-20685                                 FILED
                                                                             October 6, 2017
                                                                              Lyle W. Cayce
JOHN A. VELA,                                                                      Clerk

                                                 Plaintiff-Appellant

v.

LAURO CHAPA; SAFETY MANAGER STEPSON CHAPA; TOOLPUSHER
JOE SAENZ,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:15-CV-3256


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       John A. Vela, while incarcerated in the Harris County Jail, SPN #
01688406, moved for leave to proceed in forma pauperis (IFP) on appeal from
the district court’s dismissal of his 42 U.S.C. § 1983 complaint. After he filed
his notice of appeal, Vela moved to dismiss the appeal without prejudice. In
response to an order issued by a Judge of this court, Vela notified this court, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20685

writing, that he wished to proceed with his appeal because his motion to
dismiss without prejudice was filed by mistake.
      The district court denied Vela’s motion to proceed IFP and certified
pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a)(3)(A) that the appeal was not taken in good faith. Vela now moves this
court for leave to proceed IFP. By moving to proceed IFP, Vela is challenging
the district court’s certification that the instant appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In evaluating
whether the appeal is taken in good faith, the relevant inquiry is “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 citation omitted).
      With the benefit of liberal construction, Vela challenges the district
court’s determination that Lauro Chapa, the CEO of Scorpion Drilling, Chapa’s
stepson, a safety manager at Scorpion Drilling, and Joe Saenz, a tool pusher
at Scorpion Drilling, are not state actors and therefore are not subject to
liability under § 1983. Vela has not demonstrated that these defendants can
be characterized as acting under color of state law. See West v. Atkins, 487
U.S. 42, 49 (1988); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).
Accordingly, Vela has not shown that he will present a nonfrivolous issue on
appeal. See Howard, 707 F.2d at 220.
      Vela’s motions to dismiss the appeal without prejudice and to proceed
IFP are DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117
F.3d 202 & n.24; 5TH CIR. R. 42.2. The dismissal of Vela’s complaint and the
dismissal of his appeal both count as strikes for purposes of § 1915(g). See
Brown v. Megg, 857 F.3d 287, 290-92 (5th Cir. 2017); Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Vela is WARNED that if he accumulates



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                                  No. 15-20685

a third strike, he will not be allowed to proceed IFP in any civil action or appeal
while incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).




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