IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51272

Summary Calendar

PATRICK A. GUARDIOLA,

Plaintiff-Appellant

v.

RICKTHALER,DIRECTOR,TEXASDEPARTMENT OF CRIMINALJUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION; ASSISTANT REGIONAL

DIRECTOR B. ARMSTRONG; ASSISTANT WARDEN J. MARKUM; CAPTAIN

KEVIN L. BENJAMIN; LIEUTENANT JEFFREY FURR, SR.; LIEUTENANT

TERRENCE L. MOORE; SERGEANT DENNIS F. DALY; LIEUTENANT

JOSHUA S. MORALES; 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) on appeal from a district court judgment granting the

defendants’ summary judgment motion and dismissing his 42 U.S.C. § 1983

United States Court of Appeals

Fifth Circuit

F I L E D

June 18, 2013

Lyle W. Cayce

Clerk

* 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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action against 10 officials and employees of the Texas Department of Criminal

Justice (TDCJ). The district court denied Guardiola’s IFP motion, certifying,

pursuant to 28 U.S.C. § 1915(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, Guardiola is challenging

the district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997). To proceed IFP, a litigant must be economically eligible, and his

appeal must be taken in good 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 thus nonfrivolous. Howard v. King, 707 F.2d 215, 220 (5th

Cir. 1983). 

In support of his motion, Guardiola argues that the district court erred in

finding that the Eleventh Amendment barred his claims for injunctive relief

against Rick Thaler and Bruce Armstrong in their official capacities. Contrary

to this argument, the district court dismissed only claims for damages against

Thaler and Armstrong in their official capacities. Such a dismissal was proper. 

See Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.

1998). 

As to the claims for injunctive relief against Thaler and Armstrong,

Guardiola’s allegations in his § 1983 complaint stemmed from the way the TDCJ

dining hall policy was implemented on the Marlin Unit; however, Guardiola is

now housed on the Polunsky Unit. Because he has not shown a demonstrated

probability or a reasonable expectation of being returned to the Marlin Unit or

of having the challenged conditions applied to his imprisonment on the Polunsky

Unit, see Oliver v. Scott, 276 F.3d 736, 741-42 (5th Cir. 2002), Guardiola’s claims

for injunctive relief against Thaler and Armstrong in their official capacities do

not raise legal points for appeal that are arguable on the merits. See Howard,

707 F.2d at 220.

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As to the claims that the district court dismissed based on qualified

immunity, Guardiola has not briefed a challenge to the court’s rejection of his

excessive force claim. He has thus abandoned that claim. See Yohey v. Collins,

985 F.2d 222, 224-25 (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 appeal that is arguable on the merits,

see Howard, 707 F.2d at 220, because he has not shown the alleged conduct

“violate[d] clearly established statutory or constitutional 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 argues thatthe district court erred in finding that

he sued Kevin Benjamin and Jack Markum only as supervisors of the corrections

officers who implemented the dining hall policy, the court dismissed on this basis

solely those claims that were based on the doctrine of respondeat superior or

vicarious liability. Any other claims that Guardiola raised against these

defendants based on their active involvement in the alleged constitutional

violations were not dismissed based on the doctrine of respondeat superior or

vicarious liability but were instead dismissed when the district court addressed

the merits of Guardiola’s claims. 

As to Guardiola’s challenge to the district court’s rejection of his claim that

Dr. Richard Tracy acted with deliberate indifference to his serious medical

needs, his arguments fail to raise legal points for appeal that are arguable on the

merits. See Gobert v. Caldwell, 463 F.3d 339, 346 (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 his “state-created danger” claim likewise fails to raise

a nonfrivolous legal point for appeal. See Howard, 707 F.2d at 220. We have

never adopted the state-created danger theory of liability. See Doe v. Covington

Cnty. Sch. Dist., 675 F.3d 849, 863-65 (5th Cir. 2012) (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 harm inflicted by a private actor; therefore, the state-created danger

theory is inapposite. 

Guardiola next challenges the district court’s denials of his motion for the

entry of a default judgment against Terrence Moore; his motion to preserve video

recordings; his motion to compel the production of medical records from

September 2011 and a CT scan report from October 2011; his motion to compel

the production of grievances against Alphonso Stevens; and his motion to

supplement the pleadings. First, Guardiola has not shown that the district court

abused its discretion by refusing to grant his motion for the entry of a default

judgment against Moore. Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000). 

Second, Guardiola has not shown he was prejudiced by the district court’s

denial of his motion to preserve certain video recordings or compel the

production of the September 2011 medical records and the October 2011 CT scan

report. See Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir. 1984). Third, as

to the grievances filed against Stevens, the district court agreed with the

defendants that Guardiola’s request was overly broad, not reasonably calculated

to lead to the discovery of admissible evidence, and would result in the

production of sensitive information about other inmates. BecauseGuardiola has

not briefed 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, Guardiola has not shown that the district court abused its

discretion in denying his motion to supplement the pleadings given that he

sought to add an unexhausted claim against one of the defendants and did not

exhaust that claim until a year after he initiated his § 1983 proceeding. See

Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (noting the

district court’s “inherent power to control its docket and prevent undue delays

in the disposition of pending cases”). 

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Finally, Guardiola observes that the district court’s dismissal of his § 1983

action as frivolous will result in his forfeiture of good conduct time under Texas

Government Code § 498.0045, which provides for the loss of good time credits

when an inmate files frivolous lawsuits in state or federal courts. The district

court, however, did not dismiss Guardiola’s § 1983 action as frivolous; rather, the

court granted the defendants’ summary judgment motion and rejected

Guardiola’s request to proceed IFP on appeal, finding that his appeal was not

taken in good faith. Guardiola has not otherwise briefed 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 his motion and dismiss his appeal as frivolous. Baugh, 117 F.3d at

202 n.24; 5TH CIR. R. 42.2. The dismissal 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). Guardiola is cautioned 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).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.

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