Cabrera v. Quarterman , 317 F. App'x 410 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2009
No. 08-40237
Summary Calendar Charles R. Fulbruge III
Clerk
HORALDO CABRERA
Plaintiff-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; B
CHANEY, Senior Warden of the Garza West Unit; D MOONEYHAM, Assistant
Warden of the Garza West Unit; T ZAMORA, Major of the Garza West Unit; K
LONGORIA, Grievance Officer of the Garza West Unit; SENAIDA AMBRIZ,
Law Librarian of the Garza West Unit; K HINOJOSA, Correctional Officer of the
Garza West Law Library
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CV-268
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Horaldo Cabrera, Texas prisoner # 1415663, proceeding pro se and in
forma pauperis, appeals the dismissal as frivolous and for failure to state a claim
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40237
upon which relief could be granted of his 42 U.S.C. § 1983 complaint. Cabrera
alleged that while he was housed at the Garza West Unit, he was denied his
constitutional right of access to the courts and he was subjected to cruel and
unusual punishment. He argued that if he left the library to use the restroom,
the session was terminated and that he was required to return to his dormitory
to use the restroom and was not allowed to use the restroom near the law
library. He also alleged that the defendants retaliated against him for filing the
instant complaint.
Cabrera has not alleged any specific instance when his ability to pursue
his legal claims was hindered as a result of the restroom policy of the Garza
West Unit law library. The district court did not abuse its discretion in
dismissing this claim as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i); Lewis v.
Casey, 518 U.S. 343, 351 (1996); Harper v. Showers, 174 F.3d 716, 718 & n.3 (5th
Cir. 1999); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Cabrera has not renewed, and has thus abandoned, his arguments that the
defendants retaliated against him by searching his papers upon entering the law
library and by making him sit apart from the other plaintiffs that were parties
to this complaint. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Moreover, he has not challenged the district court’s determination that the acts
alleged were de minimis and insufficient to give rise to a retaliation claim.
Accordingly, he has not shown that the district court erred in finding that he
failed to state a claim of retaliation. Geiger v. Jowers, 404 F.3d 371, 373 (2005);
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999); Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Cabrera also
has not demonstrated error in the district court’s dismissal of his claims for
declaratory and injunctive relief. See Brinkmann, 813 F.2d at 748.
Cabrera has not alleged facts establishing that the Garza West Unit’s law
library restroom policy constitutes a health threat that gives rise to an Eighth
Amendment claim. He has not asserted that the defendants knew that he faced
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No. 08-40237
a substantial risk of harm and disregarded the risk of that harm. See Farmer
v. Brennan, 511 U.S. 825, 834, 847 (1994). Accordingly, he has not shown that
the district court erred in finding that he failed to state a claim of cruel and
unusual punishment. Geiger, 404 F.3d at 373; Harris, 198 F.3d at 156; Wilson
v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989).
We will not address Cabrera’s claims, raised for the first time on appeal,
that his First Amendment right to freedom of religion has been violated, that his
First Amendment rights were violated when the defendants took and destroyed
his postal stamps, and that there is a wide-ranging conspiracy among prison
officials to transfer, with retaliatory intent, litigating prisoners to private
facilities for the sole purpose of denying them access to the legal materials
needed to further their litigation. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
Cabrera’s motion for the appointment of counsel on appeal is denied. His
appeal lacks arguable merit. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Therefore, we dismiss it as frivolous. See 5 TH C IR. R. 42.2. The dismissal
of this appeal as frivolous and the dismissal by the district court of Cabrera’s
complaint both count as strikes under § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Cabrera is cautioned that he has now
accumulated two strikes and that, if he accumulates three strikes, he will not be
able to proceed in forma pauperis 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).
APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.
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