IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50013

RYAN BARBOZA,

Plaintiff-Appellant

v.

CYNTHIA BENAVIDES, Bexar County Sheriff’s Transporting Officer,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:15-CV-1048

Before PRADO, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Ryan Barboza, Texas prisoner # 01998261, moves for appointment of 

counsel and for leave to appeal in forma pauperis (IFP) from the dismissal of 

his civil rights action. He alleged that the defendant Cynthia Benavides used 

excessive force while changing his leg irons, causing him to fall and suffer facial 

injuries. The district court granted Benavides’s motion for summary 

judgment, noting that Barboza failed to offer competent summary judgment 

evidence to overcome Benavides’s defense of qualified immunity.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2018

Lyle W. Cayce

Clerk

 Case: 17-50013 Document: 00514384354 Page: 1 Date Filed: 03/13/2018
No. 17-50013

2

By moving to appeal IFP, Barboza challenges the certification that his 

appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 

1997). His IFP request “must be directed solely to the trial court’s reasons for 

the certification decision,” id., and our inquiry “is limited to 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) (citation omitted). 

Barboza does not address his claims or the district court’s reasons for 

denying IFP status. He says only that he refuses to pay any more filing fees. 

He thus does not attempt to make the required showing of a nonfrivolous issue 

for appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. His motion 

for IFP is denied.

We may dismiss an appeal “when it is apparent that an appeal would be 

meritless.” Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. R. 42.2. This court 

reviews a district court’s summary-judgment dismissal de novo, under the 

same standards used by the district court. See Hernandez v. Yellow Transp., 

Inc., 670 F.3d 644, 650 (5th Cir. 2012). “Summary judgment is proper if the 

pleadings and evidence show there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law.” Id.; see FED. R. CIV. 

P. 56(a). To overcome summary judgment, Barboza, as the nonmovant, must 

set forth specific facts showing the existence of a genuine issue for trial. See

FED. R. CIV. P. 56(c)(1). He may not rest on mere allegations but must point to 

specific facts and explain how they support his position. See Duffie v. United 

States, 600 F.3d 362, 371 (5th Cir. 2010).

Moreover, because Benavides invoked qualified immunity, the burden is 

on Barboza to negate the defense by demonstrating “genuine issues of material 

fact regarding the reasonableness of the [defendant’s] conduct.” Michalik v. 

Hermann, 422 F.3d 252, 262 (5th Cir. 2005). He must plead facts to show a 

 Case: 17-50013 Document: 00514384354 Page: 2 Date Filed: 03/13/2018
No. 17-50013

3

violation of a right that was clearly established at the time of the incident and 

that, in light of that clearly established law, Benavides’s conduct was 

objectively unreasonable. See Short v. West, 662 F.3d 320, 325 (5th Cir. 2011).

The record establishes that Barboza failed to present competent 

evidence, even after the judgment, that would call into question the summary 

judgment based on qualified immunity. See Short, 662 F.3d at 325; Michalik, 

422 F.3d at 262. Because “it is apparent that an appeal would be meritless,”

Barboza’s appeal is dismissed. Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. 

R. 42.2. His motion for appointment of counsel is denied.

MOTION FOR LEAVE TO APPEAL IFP DENIED; MOTION TO 

APPOINT COUNSEL DENIED; APPEAL DISMISSED.

 Case: 17-50013 Document: 00514384354 Page: 3 Date Filed: 03/13/2018