Garcia v. Lumpkin ( 2023 )

Case: 23-40028 Document: 00516943221 Page: 1 Date Filed: 10/24/2023
United States Court of Appeals
for the Fifth Circuit
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No. 23-40028
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Vinicio J. Garcia,
Plaintiff—Appellant,
versus
Bobby Lumpkin; Warden Townsend; Warden Marshall,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:22-CV-67
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Before Jones, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Vinicio J. Garcia, Texas prisoner # 1828198, filed a 42 U.S.C. § 1983action, arguing that his constitutional rights were violated when he was
transferred to an unsanitary cell. He included additional allegations
concerning the cell conditions and argued, inter alia, that he was deprived of
certain property.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40028 Document: 00516943221 Page: 2 Date Filed: 10/24/2023
No. 23-40028
The district court dismissed Garcia’s complaint for failure to state a
claim upon which relief may be granted, pursuant to 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(ii), and denied Garcia leave to proceed in
forma pauperis (IFP) on appeal. Garcia now moves this court for leave to
proceed IFP on appeal.
By seeking leave to proceed IFP, Garcia is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). To obtain IFP status, Garcia must
demonstrate financial eligibility and a nonfrivolous appellate issue. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Garcia has demonstrated
his financial eligibility, see id., but he has not shown an appellate issue
concerning the district court’s dismissal of his complaint that is likely to
prevail. See Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995).
Although Garcia has alleged deeply unpleasant conditions, his appeal
does not provide sufficient facts or allegations that would permit him to
overcome the legal insufficiencies, outlined in the magistrate judge’s
recommendation and the district court’s opinion, of his 1st Amendment, 8th
Amendment, and other claims. These insufficiencies include, among others,
the failure to demonstrate the subjective requirement of prison officials’
deliberate indifference to his health and safety, acknowledged post-
deprivation remedies and intervening transfer to a different facility that
moots certain claims, and the absence of descriptions of injuries tracing to
the conditions of which he complained. Likewise, Garcia’s requests for video
preservation of the alleged prison conditions and his generalized allegations
that rodents might carry hantavirus similarly do not alter the conclusions
under the law as it stands today.
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Case: 23-40028 Document: 00516943221 Page: 3 Date Filed: 10/24/2023
No. 23-40028
Accordingly, we DENY the motion to proceed IFP on appeal. Should
Garcia wish to proceed, he must pay the requisite filing fee. See Baugh, 117
F.3d at 202.
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