Soliz v. Hague ( 2023 )

Case: 23-40330 Document: 00516924905 Page: 1 Date Filed: 10/10/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40330
FILED
October 10, 2023
____________
Lyle W. Cayce
Roger Soliz, Jr., Clerk
Plaintiff—Appellant,
versus
Doctor M. D. Hague; Doctor Marcus Hinkle; Joy
Onougu, Nurse Practioner; Shelly or Sheryl LNU, Nurse at
UTMB Hospital Galveston; Terry Speers, Nurse Practioner; Nurse
Nwachukwu Uguru; Betsy Zachariah, Senior Practice Manager;
Doctor Phillip Singer; Mark Foreman, Orthopedic Surgeon;
Lateishal P. Cherry, TDCJ Officer; Salazar, TDCJ Officer;
Angela N. Chevalier, Assistant Warden; Powers, Assistant
Warden,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:21-CV-66
______________________________
Before Smith, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40330 Document: 00516924905 Page: 2 Date Filed: 10/10/2023
No. 23-40330
Roger Soliz, Jr., Texas prisoner # 01622355, has filed a motion to
proceed in forma pauperis (IFP) in this appeal from the dismissal of his civil
rights complaint. Soliz’s IFP motion challenges the district court’s
determination that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into whether the
appeal is taken in good faith “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).
The district court concluded that the defendants were entitled to
immunity from any claim for monetary damages against them in their official
capacities. Moreover, the court determined that Soliz’s allegations failed to
state a claim that any of the defendants were deliberately indifferent to his
serious medical needs. Because Soliz fails meaningfully to brief any challenge
to the district court’s reasons for dismissing his civil rights action, any such
issues are abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993);
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Further, we do not consider Soliz’s allegation that his surgeon was
negligent and that his operation resulted in disfigurement and nerve damage,
as Soliz raises those allegations for the first time on appeal. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Soliz does not make the requisite showing that he has a nonfrivolous
issue for appeal. See Howard, 707 F.2d at 220. Accordingly, his motion to
proceed IFP is DENIED, and his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2. His motion for the
appointment of counsel is also DENIED.
The district court’s dismissal of the suit under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b) and our dismissal of this appeal as frivolous
each count as a strike under § 1915(g). See Prescott v. UTMB Galveston Tex.,
2
Case: 23-40330 Document: 00516924905 Page: 3 Date Filed: 10/10/2023
No. 23-40330
73 F.4th 315, 319 (5th Cir. 2023); 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). Soliz is WARNED that if he accumulates three strikes,
he will not be permitted to proceed IFP in any civil action or appeal filed while
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
3