Ryan Barboza v. Cynthia Benavides , 714 F. App'x 447 ( 2018 )

Case: 17-50013 Document: 00514384354 Page: 1 Date Filed: 03/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50013
Fifth Circuit
FILED
March 13, 2018
RYAN BARBOZA, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
CYNTHIA BENAVIDES, Bexar County Sheriff’s Transporting Officer,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-1048
Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
Ryan Barboza, Texas prisoner # 01998261, moves for appointment of
counsel and for leave to appeal in forma pauperis (IFP) from the dismissal of
his civil rights action. He alleged that the defendant Cynthia Benavides used
excessive force while changing his leg irons, causing him to fall and suffer facial
injuries. The district court granted Benavides’s motion for summary
judgment, noting that Barboza failed to offer competent summary judgment
evidence to overcome Benavides’s defense of qualified immunity.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50013 Document: 00514384354 Page: 2 Date Filed: 03/13/2018
No. 17-50013
By moving to appeal IFP, Barboza challenges the certification that his
appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). His IFP request “must be directed solely to the trial court’s reasons for
the certification decision,” id., and our inquiry “is limited to whether the appeal
involves ‘legal points arguable on their merits (and therefore not frivolous).’”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).
Barboza does not address his claims or the district court’s reasons for
denying IFP status. He says only that he refuses to pay any more filing fees.
He thus does not attempt to make the required showing of a nonfrivolous issue
for appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. His motion
for IFP is denied.
We may dismiss an appeal “when it is apparent that an appeal would be
meritless.” Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. R. 42.2. This court
reviews a district court’s summary-judgment dismissal de novo, under the
same standards used by the district court. See Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 650 (5th Cir. 2012). “Summary judgment is proper if the
pleadings and evidence show there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Id.; see FED. R. CIV.
P. 56(a). To overcome summary judgment, Barboza, as the nonmovant, must
set forth specific facts showing the existence of a genuine issue for trial. See
FED. R. CIV. P. 56(c)(1). He may not rest on mere allegations but must point to
specific facts and explain how they support his position. See Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010).
Moreover, because Benavides invoked qualified immunity, the burden is
on Barboza to negate the defense by demonstrating “genuine issues of material
fact regarding the reasonableness of the [defendant’s] conduct.” Michalik v.
Hermann, 422 F.3d 252, 262 (5th Cir. 2005). He must plead facts to show a
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Case: 17-50013 Document: 00514384354 Page: 3 Date Filed: 03/13/2018
No. 17-50013
violation of a right that was clearly established at the time of the incident and
that, in light of that clearly established law, Benavides’s conduct was
objectively unreasonable. See Short v. West, 662 F.3d 320, 325 (5th Cir. 2011).
The record establishes that Barboza failed to present competent
evidence, even after the judgment, that would call into question the summary
judgment based on qualified immunity. See Short, 662 F.3d at 325; Michalik,
422 F.3d at 262. Because “it is apparent that an appeal would be meritless,”
Barboza’s appeal is dismissed. Baugh, 117 F.3d at 202 & n.24; see 5TH CIR.
R. 42.2. His motion for appointment of counsel is denied.
MOTION FOR LEAVE TO APPEAL IFP DENIED; MOTION TO
APPOINT COUNSEL DENIED; APPEAL DISMISSED.
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