     Case: 11-41191     Document: 00511953275         Page: 1     Date Filed: 08/10/2012




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

                                                                            FILED
                                                                          August 10, 2012
                                     No. 11-41191
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ADRIAN A. MILES,

                                                  Plaintiff-Appellant

v.

JACK STAUDE, Officer at Eastham Unit; CLINT BURROW, Officer CO III;
T. BOLTON, Sergeant; C. FISHER, Major; W. KING, Captain,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:10-CV-61


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Adrian A. Miles, Texas prisoner # 292396, has applied for leave to appeal
in forma pauperis (IFP) from the magistrate judge’s judgment dismissing his
civil rights complaint. Miles contended below that corrections officer Jack
Staude used excessive force in attempting to dissuade him from using his hand
to hold open the food slot of his cell door. Miles complained also that the
defendants retaliated against him for filing a grievance related to the incident.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-41191    Document: 00511953275     Page: 2   Date Filed: 08/10/2012

                                  No. 11-41191

The parties consented to entry of judgment by the magistrate judge. The
defendants’ motion for partial summary judgment with respect to the retaliation
claim was granted, and the excessive-force claim was dismissed following a
bench trial.
      By moving to proceed IFP, Miles challenges the magistrate judge’s
certification that the appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). This court must determine “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).
      Miles complains that the magistrate judge failed to state her reasons for
concluding that the appeal was not taken in good faith. This contention is
without merit. The magistrate judge stated that leave to appeal IFP was denied
for reasons stated in her memorandum opinion and order of dismissal and
referred, in turn, to her prior order granting the defendants’ motion for summary
judgment as to the retaliation claim.
      Miles makes no argument with respect to the merits of his retaliation
claim, he merely refers to his statement of claim and he asks the court to review
the memorandum opinion and order of dismissal. No nonfrivolous issue has
been identified with respect to the magistrate judge’s orders rejecting that claim
on the merits. See id. Although the complaint arguably asserts a claim of denial
of medical care, the magistrate judge did not analyze that claim, and Miles has
not shown that there is non-frivolous issue with respect to her failure to do so.
See id.
      As to his excessive-force claim, Miles cites Wilkins v. Gaddy, 130 S. Ct.
1175 (2010), for the proposition that the magistrate judge erred in requiring him
to prove that he sustained a serious injury. This contention is without merit.
The magistrate judge stated unambiguously that she was considering the
absence of injury as a factor to be considered. See Wilkins, 130 S. Ct. at 1178.

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                                  No. 11-41191

Unlike Wilkins, it was not the sole determinant of the magistrate judge’s
decision. See id. at 1179-80. No nonfrivolous issue has been shown. See
Howard, 707 F.2d at 220.
      Miles notes that he filed three motions in the district court seeking
appointment of counsel. Although the third motion was granted, he complains,
the magistrate judge did so with “special instruction[s].” Miles states, without
elaboration, that he “would like to present this issue on appeal.” The magistrate
judge appointed counsel to represent Miles during pre-trial proceedings and at
trial. Counsel’s representation was not limited in any material way, and the
record does not reflect why Miles elected to proceed pro se at trial.                No
nonfrivolous issue has been identified.       See id.
      Miles complains, in conclusional fashion, that he was not allowed to
conduct discovery and he was not permitted to amend his complaint. Miles did
not ask the magistrate judge for leave to amend his complaint. The defendants
disclosed the records related to the retaliation and excessive-force claims. No
nonfrivolous issue has been shown. See id.
      The motion for leave to proceed IFP is DENIED. See Baugh, 117 F.3d at
202. Because the appeal is frivolous, it is DISMISSED. See id. at 202 n.24; see
also 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. §1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). We CAUTION Miles 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. See § 1915(g).




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