Moran v. LA Dept of Pub Sfty & Corr ( 2023 )

Case: 22-30787 Document: 00516895599 Page: 1 Date Filed: 09/14/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-30787
Summary Calendar FILED
____________ September 14, 2023
Lyle W. Cayce
Quinten M. Moran, Clerk
Plaintiff—Appellant,
versus
Louisiana Department of Public Safety and
Corrections; Kirt D. Guerin; Walter Gerald; Unknown
Robinson,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:22-CV-512
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Before Jones, Higginson, and Ho, Circuit Judges.
Per Curiam: *
Quinten M. Moran, Louisiana prisoner # 465482, moves for leave to
proceed in forma pauperis (IFP) in his appeal of the sua sponte dismissal of
his civil action. The motion is a challenge to the district court’s certification
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30787 Document: 00516895599 Page: 2 Date Filed: 09/14/2023
No. 22-30787
that the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
Moran argues that the district court erred in dismissing his claims.
However, with regard to his claims based on deliberate indifference to serious
medical needs, the inadequacy of grievance procedures, verbal abuse and
threats, and conspiracy, Moran’s failure to address the district court’s
grounds for dismissal “without even the slightest identification of any error
in [the court’s] legal analysis or its application to [his] suit . . . is the same as
if he had not appealed that judgment.” Brinkmann v. Dallas Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Therefore, these four claims
are forfeited. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
Brinkmann, 813 F.2d at 748. As to his sole remaining claim, which concerns
the asserted failure to protect him from another inmate, as the district court
determined, the claim fails because it is based on alleged negligent acts, not
deliberate indifference to Moran’s safety. See Oliver v. Collins, 914 F.2d 56,
60 (5th Cir. 1990). 1
Also, Moran contends that the district court abused its discretion by
dismissing his action without giving him an opportunity to amend his
complaint a second time. However, Moran was on notice of the deficiencies
in his amended complaint, yet he failed to “proffer a proposed second
amended complaint to the district court,” and did not “suggest . . . any
additional facts not initially pled that could, if necessary, cure the pleading
defects.” Goldstein v. MCI WorldCom, 340 F.3d 238, 254-55 (5th Cir. 2003).
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1
In a footnote, Moran contends that the allegations of his complaint, if taken as
true, establish the defendants’ guilt of various criminal offenses. To the extent that
Moran’s argument can be liberally construed as raising additional civil rights claims,
because he did not pursue such claims in the district court, this court will not address them
on appeal. See Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
2
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No. 22-30787
In such circumstances, a district court does not abuse its discretion in
denying leave to amend. See id.In view of the foregoing, Moran has failed to show that “the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). Because the appeal lacks arguable merit, Moran’s IFP
motion is DENIED, and the APPEAL IS DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 220; 5th Cir. R. 42.2.
The district court’s dismissal of the complaint for failure to state
a claim and the dismissal as frivolous of this appeal each count as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson,
575 U.S. 532, 537 (2015). Moran is WARNED that if he accumulates three
strikes, he will no longer 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).
3