Martin v. Live Oak ( 2023 )

Case: 23-40254 Document: 00516952746 Page: 1 Date Filed: 11/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 1, 2023
No. 23-40254 Lyle W. Cayce
Summary Calendar Clerk
____________
Daniel Neal Martin,
Plaintiff—Appellant,
versus
Live Oak County Jail; Live Oak County Sheriffs
Department; Cara Kay Joiner Barton; Maurice
Chambers; Daniel Coban Barton, also known as Daniel
Forrest Coban Joiner Bart; Sheriff Larry Busby; Chief
Deputy Charlie Stroleny; Captain Misty Gonzalez;
Corporal Vasquez; Jailer Perry, also known as Corporal
Perry,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:22-CV-156
______________________________
Before Jolly, Engelhardt, and Douglas, Circuit Judges.
Per Curiam: *
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40254 Document: 00516952746 Page: 2 Date Filed: 11/01/2023
No. 23-40254
Daniel Neal Martin, Live Oak County Jail prisoner # 26884, appeals
the dismissal of his 42 U.S.C. § 1983 suit as either frivolous or for failure to
state a claim upon which relief may be granted, or both, under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A. He also moves for appointment of counsel.
We review de novo a dismissal by a district court as either frivolous or
for failure to state a claim, or both, under §§ 1915(e)(2)(B) and 1915A(b)(1).
See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). To determine whether
an action states a claim on which relief may be granted, a court must deter-
mine whether the complaint “contain[s] sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “A
complaint is frivolous if it lacks an arguable basis in law or fact.” Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and cita-
tion omitted).
Martin first claims the district court erred in dismissing his First
Amendment claim as either frivolous or for failure to state a claim, or both.
However, Martin has not alleged, either here or in the district court, that he
expressed himself toward Corporal Vasquez in a manner that was consistent
with his status as a prisoner. See Hudson v. Palmer, 468 U.S. 517, 523 (1984);
Bell v. Wolfish, 441 U.S. 520, 545 (1979). Thus, the district court did not err
in dismissing this claim. See Iqbal, 556 U.S. at 678; Berry, 192 F.3d at 507.
Next, Martin claims the district court erred in dismissing his excessive
force claim against the defendants. At most, he suggests that Corporal
Vasquez’s use of pepper spray posed an even greater risk of bodily injury
because Martin had COVID-19 at the time of the incident. Because he offers
only a conclusional assertion in this regard and does not challenge
meaningfully the district court’s reasons for dismissal, Martin has not
demonstrated that the district court erred in dismissing the excessive force
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No. 23-40254
claim as either frivolous or for failure to state a claim, or both. See Kingsley v.
Hendrickson, 576 U.S. 389, 396-97 (2015); Iqbal, 556 U.S. at 678; Mowbray v.
Cameron Cnty., 274 F.3d 269, 278 (5th Cir. 2001); Berry, 192 F.3d at 507.
Martin also argues the district court erred in dismissing his
conditions-of-confinement claims, including denial of recreation privileges
and denial of medical treatment. However, he has waived these arguments
by providing no meaningful argument or challenge to the district court’s
reasons for dismissing these claims. See Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Similarly, by failing to challenge the district court’s
dismissal of his supervisory liability claims and those claims against the
defendants in their official capacities, he has abandoned them. See
Brinkmann, 813 F.2d at 748. And while Martin purports to raise a claim of
discrimination, we will not consider it because Martin did not raise this claim
in the suit forming the basis of this appeal. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999); Yohey, 985 F.2d at 224-25; see also
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
As to Martin’s argument that he has been denied bond hearings in
violation of his civil rights, given that any issue related to his bond would
implicate his state criminal case, rather than the instant civil matter, the
district court did not err in declining to review the issue. See 28 U.S.C.
§§ 2241, 2254; Tex. Code Crim. Proc. art. 17, et seq. Nor did the
district court err in denying Martin’s request for injunctive relief in the form
of a policy prohibiting the use of “respiratory irritants” on COVID-positive
prisoners, as he failed to make the requisite showing for such relief. Byrum v.
Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
The judgment of the district court is AFFIRMED, and Martin’s
motion for appointment of counsel is DENIED. See Cooper v. Sheriff,
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Lubbock Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991). The district court’s
dismissal of Martin’s complaint under § 1915(e)(2)(B) as either frivolous or
for failure to state a claim, or both, counts as a single strike under § 1915(g).
See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996),
abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532, 534-41
(2015). Martin previously accumulated one strike for the dismissal of a prior
suit as frivolous or for failure to state a claim, or both. See Martin v. Busby,
No. 22-40725, 2023 WL 4983234, 1 (5th Cir. Aug. 3, 2023) (unpublished).
Accordingly, Martin is WARNED that if he accumulates three strikes, he
may not 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).
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