     Case: 18-41041      Document: 00515140819        Page: 1     Date Filed: 10/01/2019




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

                                     No. 18-41041                           FILED
                                                                      October 1, 2019
                                                                       Lyle W. Cayce
VICTOR H. CANALES,                                                          Clerk

                                                Plaintiff−Appellant,
versus

CAPTAIN H. AYALA; NURSE GUERRA;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE MEDICAL;
J. THOMAS, Practice Manager Texas State Prison;
RUDY AGUIRRE, JR., Gang Intelligence Officer at Texas State Prison;
MELODY M. SCHUSTER, Lieutenant Texas State Prison,

                                                Defendants−Appellees.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 5:17-CV-154




Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *

      Victor Canales, Texas prisoner #2064303, filed a complaint under
42 U.S.C. § 1983 against various officials at the Texas Department of Criminal


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 18-41041

Justice (“TDCJ”) transfer facility, alleging that they were deliberately indif-
ferent to his serious medical needs in violation of the Eighth Amendment. The
district court dismissed without prejudice for failure to exhaust administrative
remedies under 42 U.S.C. § 1997e(a). Canales timely appealed and moved to
proceed in forma pauperis (“IFP”) on appeal. The district court denied the IFP
motion and certified that the appeal was not taken in good faith.

      Challenging the district court’s certification, Canales moves for leave to
proceed IFP on appeal. “An appeal may not be taken [IFP] if the trial court
certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).
This court’s inquiry into whether the appeal is taken in good faith “is limited
to whether the appeal involves legal points arguable on their merits (and there-
fore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted). If the court upholds the district court’s
certification, the appellant must pay the appellate filing fee or the appeal will
be dismissed for want of prosecution. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). But if the appeal is frivolous, this court may dismiss it sua
sponte. Id. at 202 n.24; 5TH CIR. R. 42.2.

      Although Canales filed a step one grievance in July 2017, he does not
dispute that he failed to complete the grievance process before he filed his
complaint in August 2017. Under the Prison Litigation Reform Act (“PLRA”)
“[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 85
(2006). Canales’s failure to exhaust was not remedied by exhaustion during
the federal proceeding. See Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
Canales has not shown that the district court erred in dismissing his complaint


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                                 No. 18-41041

for failure to exhaust his administrative remedies. See id.

      Canales has not shown that there is a nonfrivolous issue on appeal. See
Howard, 707 F.2d at 220. Therefore, the district court did not err in holding
that the appeal was not taken in good faith. See id. at 219−20. Accordingly,
the IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. Canales’s motion for appoint-
ment of counsel is also DENIED.

      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, 1762−63 (2015).
Canales is CAUTIONED that if he accumulates three strikes, he will not be
able 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 physi-
cal injury. See § 1915(g).




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