Abelardo Gonzalez v. Anna Sarabia ( 2018 )

Case: 17-40188 Document: 00514442236 Page: 1 Date Filed: 04/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40188
FILED
April 23, 2018
Lyle W. Cayce
ABELARDO G. GONZALEZ, Clerk
Plaintiff-Appellant
v.
ANNA D. SARABIA, Carole Young Medical Facility Law Library; CHERYL A.
GAUTIER, Carole Young Medical Facility Mailroom; MARTHA L. BURGESS,
Carole Young Medical Facility Assistant Warden; I. TAYLOR, McConnell Unit
Inmate Property; JANE/JOHN DOE,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 3:14-CV-366
Before ELROD, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Abelardo G. Gonzalez, Texas prisoner # 01622682, seeks leave to appeal
in forma pauperis (IFP) from the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint. By moving to proceed IFP, Gonzalez is challenging the
district court’s determination that his appeal has not been brought in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40188 Document: 00514442236 Page: 2 Date Filed: 04/23/2018
No. 17-40188
In support of his motion, Gonzalez argues that the district court failed to
address his claims that Correctional Officer Cheryl Gautier and law library
supervisor Jane/John Doe at the Huntsville Unit violated his right of access to
courts by preventing him from filing meaningful objections and a timely notice
of appeal in his previous 28 U.S.C. § 2254 proceeding. In the district court, he
alleged that Gautier delivered the judgment denying his habeas petition one
day late, preventing him from filing a timely notice of appeal and that
Jane/John Doe directed another defendant, Correctional Officer Anna Sarabia,
to deny access to the courts to Gonzalez. He further contends that his appeal
in his habeas proceeding would not have been frivolous.
Gonzalez has not shown that the district court failed to consider his
claims against Gautier and Jane/John Doe. The district court considered
Gonzalez’s claims against all of the defendants jointly and correctly
determined that he did not allege sufficient facts to indicate that the
defendants deprived him of the opportunity to file meaningful objections; he
filed two sets of objections, which were both considered by the habeas court.
Gonzalez did not allege sufficient facts to indicate that his objections were
incomplete as he did not identify any specific additional objections that he
would have raised had he had access to more legal materials. See Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010) (stating that this court will “not accept
as true conclusory allegations, unwarranted factual inferences, or legal
conclusions.”).
Further, Gonzalez did not allege sufficient facts to show that he was
harmed by the missed appeal deadline. Gonzalez did not show that his appeal
of the denial of his habeas petition, and in particular his Brady 1 claim, would
have been nonfrivolous. Therefore, he has not shown that the district court
1 Brady v. Maryland, 373 U.S. 83 (1963).
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Case: 17-40188 Document: 00514442236 Page: 3 Date Filed: 04/23/2018
No. 17-40188
erred in finding he was not harmed by the missed appeal deadline. Moreover,
Gonzalez did not allege sufficient facts to indicate that the defendants’ actions
prevented him from filing a timely notice of appeal in the habeas proceeding.
See Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993). Because
Gonzalez had 23 days to file a notice of appeal after the judgment was delivered
to him, his allegations do not indicate that an alleged one-day delay in
Gautier’s delivery of the judgment actually prevented him from filing a timely
notice of appeal. See id. We may affirm the district court’s judgment on any
ground supported by the record. See Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999).
In addition, Gonzalez has not shown that the district court erred in
denying his retaliation claim. He did not make sufficient factual allegations to
indicate that Assistant Warden Martha L. Burgess transferred him in
retaliation for his filing grievances or allege a timeline of events from which
the court could have plausibly inferred that Burgess acted in retaliation. See
Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006); Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995). Further, the temporal proximity of his grievance
and the transfer alone was not sufficient to state a claim that Burgess
transferred him in retaliation for his filing the grievance. See Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); see also Reese v.
Skinner, 322 F. App’x 381, 383 (5th Cir. 2009).
IFP MOTION DENIED and APPEAL DISMISSED.
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