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Mike Palacios v. United States Marshal Service, et ( 2012 )


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  •      Case: 12-50222     Document: 00512044658         Page: 1     Date Filed: 11/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
November 6, 2012
No. 12-50222
Summary Calendar                        Lyle W. Cayce
Clerk
MIKE PALACIOS,
Plaintiff-Appellant
v.
UNITED STATES MARSHAL SERVICE; LIEUTENANT ASHABRANNER;
MRS. PALMOUR; PHILLIP MAXWELL, United States Marshal; WARDEN
JACK BREWER, Community Education Center; COMMUNITY EDUCATION
CENTERS, INCORPORATED,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:11-CV-9
Before DAVIS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Mike Palacios, former Texas prisoner # 01637370 and current federal
prisoner # 24824-180, seeks leave to proceed in forma pauperis (IFP) on appeal
of the district court’s dismissal of his
    42 U.S.C. § 1983
     action, which was also
construed as an action pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics,
    403 U.S. 388
     (1971). The district court dismissed his action
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50222    Document: 00512044658       Page: 2   Date Filed: 11/06/2012
No. 12-50222
pursuant to
    28 U.S.C. §§ 1915
    (e)(2)(B)(ii) and 1915A. The district court also
dismissed on summary judgment Palacios’s denial of medical care claim as being
unexhausted. By moving for leave to proceed IFP, Palacios is challenging the
district court’s certification that his appeal is not taken in good faith because it
is frivolous. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997);
    28 U.S.C. § 1915
    (a)(3); FED. R. APP. P. 24(a)(5).
We review de novo a district court’s summary judgment dismissal based
upon a failure to exhaust. See Dillon v. Rogers,
    596 F.3d 260
    , 266 (5th Cir.
2010). Palacios has not demonstrated that the district court erred in granting
the summary judgment motion filed by certain defendants with respect to his
denial of medical care claim. See FED. R. CIV. P. 56(c). The remainder of
Palacios’s claims against the defendants have not been addressed or are
inadequately briefed. Accordingly, those claims have been abandoned. See
Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993); Brinkmann v. Dallas
County Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987).
Because Palacios has not demonstrated that the district court erred in
certifying that his appeal is not taken in good faith, we deny his IFP motion and
dismiss his appeal as frivolous. See 5TH CIR. R. 42.2; Baugh,
    117 F.3d at 
    202
& n.24; Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). The district court’s
dismissal of his lawsuit and our dismissal of the appeal as frivolous count as two
strikes under
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    ,
386-88 (5th Cir. 1996). Palacios has already accumulated one strike under
§ 1915(g) in Palacios v. Desert Springs Med. Ctr., No. 7:06-CV-34 (W.D. Tex.
Mar. 13, 2006). As Palacios has accumulated three strikes, he is advised that he
will no longer be allowed to proceed IFP in any civil action or appeal filed while
he is detained or incarcerated in any facility unless he is under imminent danger
of serious physical injury. See § 1915(g).
Finally, the district court may, as Palacios suggests, have miscalculated
the initial partial appellate filing fee.     See
    28 U.S.C. § 1915
    (b)(1)(A)&(B).
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Case: 12-50222    Document: 00512044658       Page: 3   Date Filed: 11/06/2012
No. 12-50222
Nevertheless, because that fee has already been collected from Palacios’s inmate
account, there should not be a hold on his account, and any overpayment of that
fee will reduce Palacios’s indebtedness for the balance of the $455 he owes for
filing this frivolous appeal. A remand to the district court for recalculation of the
initial partial filing fee or for a refund of any overpayment of that fee is not
warranted.
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED; § 1915(g) SANCTION BAR IMPOSED.
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