### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-51272 Summary Calendar

PATRICK A. GUARDIOLA, Plaintiff-Appellant

v. RI C K T HAL E R , D I R E C T O R , T E X A S D E PARTM E NT O F C R I M I N AL JU S T I C E , CORRE C TIONAL INSTITUTIONS DIVISION; ASSISTANT REGIONAL DIRECT O R B. ARMSTRONG; ASSISTANT WARDEN J

. MARKUM; CAPTAIN KEVIN L. BENJAMIN; LIEUTENANT JEFFREY FURR, SR.; L IEUTENANT TERRENCE L

. MO O R E ; SERGEANT D ENNIS F. DALY; L IEUTENANT JOSHUA S

. M ORALES; SERGEANT ALPHONSO L. STEVENS; RICHARD TRACY, M.D., Defendants-Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 6:11-CV-171

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Patrick A. Guardiola, Texas prisoner # 1644751, seeks leave to proceed in forma pauperis (IFP) o n appeal from a district court judg m e nt granting the defendants’ summary judgment motion and dismissing his 42 U.S.C. § 1983 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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action against 1 0 officials and employees of the Texas Department of Criminal Justice (TDCJ). The distric t court denied Guardiola’s IFP motion, certifying, pursuant t o 2 8 U .S.C. § 1 915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3), that the appeal was not taken in good faith. By moving in this court for leave to proceed IFP, G uardiola is challenging the district court’s certification decision. See Baugh v . T aylor , 1 17 F.3d 1 97, 202 (5th Cir. 1997). To proceed IFP, a litigant m ust b e economically e ligible, and his appeal must be taken in go od faith. Carson v. Polley , 689 F.2d 562, 586 (5th Cir. 1982). An appeal is taken in good faith if it raises legal points that are arguable

on the merits and t h u s n o n f r i volous. Howard v. K ing , 707 F.2d 215, 220 (5th Cir. 1983). In support of h is motion, Guardiola argues that the district court erred in finding that the Eleventh Amendment b a r r e d his claims for injunctive relief against Rick Thaler and Bruce Armstrong in th eir official capacities. Contrary to this argument, the district court dismissed only claims for damages against Thaler and Armstrong in their official capacities. S uch a dismissal was proper. See Aguilar v. Texas Dep’t of Cr i minal Justice , 160 F.3d 1052, 1054 (5th Cir. 1998). As to the claims for injun c tive r elief a gainst Thaler and Armstrong, Guardiola’s allegations in h i s § 1983 complaint stemmed from the way the TDCJ dining hall policy was implemented on the Marlin Unit; however, Guardiola is now housed on the P olunsky Unit. Because he h as not shown a demonstrated probability or a reasonable expectation of being returned to the Marlin Unit or of having the challenged conditions a pplied t o his imprisonment o n the Polunsky Unit, see Oliver v. Scott , 276 F.3d 736, 741-42 (5th Cir. 2 002), Guardiola’s claims for injunctive relief against Thaler and Armstrong in their official capacities d o not raise legal points for appeal that are arguable on the merits. See H oward , 707 F.2d at 220.

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As to the claims that the district court dismissed based o n qualified immunity, Guardiola h as not briefed a challenge to the court’s rejection of his excessive force claim. He h as thus abandoned that claim. See Yohey v . Collins , 985 F.2d 222, 2 24-25 (5th Cir. 1993). Guardiola’s challenge to the district court’s rejection of his claim about implementation of the TDCJ dining hall policy on the Marlin Unit does not raise a legal point for a ppeal that is arguable on the merits,

see Howard , 707 F.2d at 220, because h e has not shown the all e g e d c o n d u c t “violate[d] c learly established statutory o r constitut i o n a l rights of which a reasonable person would have known.” Easter v. Powell , 467 F.3d 459, 462 (5th Cir. 2006)(internal quotation marks and citation omitted); Thompson v . Upshur Cnty., Tex. , 245 F.3d 447, 457 (5th Cir. 2001). Although Guardiola also argue s th at th e di s tric t c o urt erred in f inding that he sued Kevin Benjamin and Jack Markum o nly as supervisors of the corrections

o f f icers who implemented the dining hall policy, the court dismissed on this b a s i s solely those claims that we r e b a s e d on the doctrine of respondeat superior or

v i c a rious liability. Any other claims that G u ardiola raised against these defendants based on their active involvement i n t h e a lleged constitutional

v i olations were not dismissed based on the doctrine o f respondeat sup e r i o r o r vicarious liability but were i nstead dismissed when the district court addressed the merits of Guardiola’s claims. As to Guardiola’s challenge to the district court’s rejection of h is claim that Dr. Richard Tracy acted with deliberate indifference to his serious medical needs, his arguments fail to raise legal p oints f or appeal that are arguable on the meri t s . Se e G obert v. Caldwell , 463 F.3d 339, 3 46 ( 5th Cir. 2006); Stewart v. Murphy , 174 F.3d 530, 534-35 (5th Cir. 1999). Guardiola’s challenge to the district court’s rejection of h is “state-created danger” claim likewise fails to raise

a nonfrivolous l egal point for appeal. See H o w a r d , 7 07 F.2d at 2 20. We have

never a dopted the s tate-created danger theory of liability. See Doe v. Covington Cnty. Sch. Dist. , 6 75 F .3d 849, 863-65 ( 5th Cir. 2 012) ( en banc). Even if we had
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adopted such a theory, Guardiola did not allege in his § 1983 complaint that he suffered ha r m i n f

l icted b y a private actor; therefore, the s tate-created danger theory is inapposite. Guardiola n ext challenges the district court’s d enials of his motion for the entry of a default judgment against Terrence Moore; his motion to preserve video

r e cordings; his motion to compel the production of medical records fr o m September 2011 and a CT scan r eport f rom October 2011; h is motion to compel t he p roduction o f grievances against Alphonso S tevens; and his moti o n t o supplement the pleadings. First, Guardiola has not s hown that the district court abused its discretion by refusing to grant his motion for the e ntry o f a default judgment a gainst Moore. Lacy v. Sitel Corp ., 227 F.3d 2 90, 292 (5th Cir. 2000). Second, Guardiola has n ot shown h e was prejudiced by the district court’s denia l o f his motion to preserve certain video recordings o r compel the production of the September 2 011 medical r e cords and the October 2011 CT scan report. See Marshall v. Norwood , 741 F.2d 761, 764 (5th Cir. 1984). Third, as to the grievance s f

iled against Stevens, the district court agreed with the defendants that Guardiola’s r equest was overly broad, not reasonably calculated to lead to the discovery of admissible evidence, and would re s u l t i n t he production of sensitive information about o ther inmates. B ecause G u ar diola has not b riefed any challenge to this particular ruling, he has not raised a legal point for appeal that is arguable on the merits. Howard , 707 F.2d at 220. Fourth, Guardio l a has not shown that the district court abused its discretion in denyin g h i s motion to supplement the p leadings given that he sought to a dd an unexhausted claim against one of the defendants and did not exhaust that claim until a y ear after h e i n i t i a t e d his § 1983 proceeding. See B o u d w i n v. Graystone Ins. Co. , 756 F.2d 399, 401 (5th Cir. 1 985) (noting the district court’s “inherent power to control its docket a nd prevent undue delays in the disposition of pending cases”).

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Finally, Guardiola observes that the district court’s di smissal of his § 1983 action as frivolous will result in his f orfeiture of good conduct time under Texas Government Code § 498.0045, w h i ch provides for the loss of good time credits when an inmate files frivolous lawsuits in state o r federal courts. The district court, however, did not di s m i ss Guardiola’s § 1983 action as frivolous; rather, the court granted th e d e f endants’ summary judgment m otion and rejected Guardiola’s r e q uest to proceed IFP on appeal, f inding that his appeal was not taken in good faith. Guardiola has not o therwise b riefed how this argument raises a legal point for appeal that is arguable on the merits. See Howard , 707 F.2d at 220. Because Guardiola has not raised an arguable legal point for appeal, see id. , we deny h is m otion and dismiss his appeal as frivolous. Baugh , 117 F.3d at 202 n.24; 5 T H C I R

. R. 4 2.2. The dismissal coun t s a s a s trike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons , 103 F.3d 3 83 , 3 8 7

- 8 8 (5th Cir. 1996). Guardiola is cautioned that if he accumulates three strikes under § 1 915(g) he will not be allowed to proceed IFP in any civil action or appeal filed while he is incarcerated or detained i n any facility unless he “is under imminent danger of serious physical injury.” See§ 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

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