United States Court of Appeals

for the Fifth Circuit

No. 20-20549

Summary Calendar

Troy Daniel Thoele, 

Plaintiff—Appellant,

versus

Billy Lewis, Senior Warden, Huntsville Unit; James Jones, Former 

Senior Warden, Huntsville Unit; Darron Lane, Major, Huntsville Unit; 

Michael Proctor, Captain, Huntsville Unit; Jason Lightsey, 

Captain, Huntsville Unit; Scott Bailey, Corrections Officer, Huntsville 

Unit; Aleticia Glasgow, Corrections Officer, Huntsville Unit; 

Candace Pace, Counsel Substitute, Huntsville Unit, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-4018

United States Court of Appeals

Fifth Circuit

FILED

November 19, 2021

Lyle W. Cayce

Clerk

Case: 20-20549 Document: 00516100619 Page: 1 Date Filed: 11/19/2021
No. 20-20549

2

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Troy Daniel Thoele, Texas prisoner # 1784662, has applied for leave 

to proceed in forma pauperis (IFP) in this appeal from the dismissal of his 

civil rights complaint as frivolous and for failure to state a claim upon which 

relief may be granted. By moving for leave to proceed IFP, Thoele is 

challenging the district court’s determination that his appeal is not taken in 

good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A motion for 

leave to proceed IFP on appeal “must be directed solely to the trial court’s 

reasons for the certification decision.” Id. Our inquiry into good faith “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) (internal quotation marks and citations omitted). If we uphold the 

district court’s certification that the appeal is not taken in good faith, Thoele 

must pay the appellate filing fee or the appeal will be dismissed for want of 

prosecution. Baugh, 117 F.3d at 202. However, we may dismiss the appeal 

as frivolous when it is apparent that an appeal would be meritless. 5th Cir. 

R. 42.2; Baugh, 117 F.3d at 202 n.24.

The district court must dismiss a prisoner-filed IFP civil rights action 

that is frivolous or fails to state a claim on which relief may be granted. See

28 U.S.C. § 1915A(a)–(b)(1); 28 U.S.C. § 1915(e)(2)(B)(i)–(ii). 

In his complaint, Thoele sought declaratory and injunctive relief only. 

The district court determined that Thoele’s transfer from the Huntsville 

Unit to the Boyd Unit of the Texas Department of Criminal Justice (TDCJ) 

rendered his claims for declaratory and injunctive relief moot. See Herman v. 

* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.

Case: 20-20549 Document: 00516100619 Page: 2 Date Filed: 11/19/2021
No. 20-20549

3

Holiday, 238 F.3d 660, 665 (5th Cir. 2001). The court determined in the 

alternative that Thoele’s constitutional claims were frivolous or failed to 

state a claim upon which relief may be granted. Finally, the district court 

denied Thoele’s motion to add the TDCJ, Bryan Collier, and Deborah 

Cockrell as additional defendants.

Thoele does not dispute that his claims for declaratory and injunctive 

relief against the original defendants are moot. Instead, Thoele challenges 

the district court’s sua sponte dismissal of his complaint under the screening 

provisions of § 1915 and § 1915A. He complains that the defendants were 

never served; that he did not have an opportunity to conduct discovery; and 

that he was not given an opportunity to amend his complaint to assert damage 

claims against the eight original defendants and the TDCJ, Collier, and 

Cockrell. Thoele contends that he has been exposed to excessive heat; that 

defendants have been deliberately indifferent to his related medical 

condition; that his right to due process was violated during a prison 

disciplinary proceeding; that he was denied effective assistance of counsel 

substitute; that defendants retaliated against him for using the grievance 

process and because of his litigiousness; that his right to equal protection was 

violated during the disciplinary proceeding; and that defendants failed to 

protect him from violent offenders with whom he was housed. 

We have examined Thoele’s constitutional claims and conclude that 

providing Thoele with an opportunity to recast them as claims for damages 

would be futile. See Aldridge v. Miss. Dep’t of Corr., 990 F.3d 868, 878 (5th 

Cir. 2021); Rhodes v. Bureau of Prisons, 477 F.2d 347, 348 (5th Cir. 1973). The 

claims against the TDCJ, Collier, and Cockrell have not been briefed and, 

therefore, are forfeited. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 

1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th 

Cir. 1987).

Case: 20-20549 Document: 00516100619 Page: 3 Date Filed: 11/19/2021
No. 20-20549

4

Thoele has failed to show that he has a nonfrivolous issue for appeal. 

See Howard, 707 F.2d at 220. The motion for leave to proceed IFP is 

DENIED, and the appeal is DISMISSED as frivolous. See 5th Cir. R. 

42.2; Baugh, 117 F.3d at 202 n.24.

Under § 1915(g), a prisoner may not bring a civil action or appeal IFP 

if he has, on three or more occasions, while incarcerated or detained, brought 

an action or appeal that was dismissed as frivolous, malicious, or for failure 

to state a claim. The district court’s dismissal of the instant complaint as 

frivolous and for failure to state a claim upon which relief may be granted 

counts as a strike under § 1915(g), and our dismissal of this appeal as frivolous 

also counts as a strike. See Coleman v. Tollefson, 575 U.S. 532, 537-38 (2015). 

Thoele has a third strike in Thoele v. Abbott, No. A-15-CA-997-SS, 2015 WL 

8516676 (W.D. Tex. Dec. 11, 2015) (unpublished) (dismissing complaint as 

frivolous because it asserted claims that were time barred); see also Gonzalez 

v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998). 

Thoele now has at least three strikes under § 1915(g) and is therefore 

BARRED from proceeding 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).

Case: 20-20549 Document: 00516100619 Page: 4 Date Filed: 11/19/2021