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Joe Jimenez, Jr. v. Bexar County Sheriff's Dept, e , 537 F. App'x 452 ( 2013 )


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  •      Case: 12-51247       Document: 00512322531         Page: 1     Date Filed: 07/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
July 26, 2013
No. 12-51247
Summary Calendar                        Lyle W. Cayce
Clerk
JOE RAFAEL JIMENEZ, JR.,
Plaintiff-Appellant
v.
BEXAR COUNTY SHERIFF’S DEPARTMENT; AMADEO ORTIZ; ROGER
DOVALINA; SERGEANT E. GONZALES, # 7540; DEPUTY RODRIGUEZ, Law
Library Deputy,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:12-CV-400
Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Joe Rafael Jimenez, Jr., Texas prisoner # 01841216, seeks leave to proceed
in forma pauperis (IFP) on appeal from the dismissal of his
    42 U.S.C. § 1983
    action as frivolous and for failure to state a claim upon which relief could be
granted. In denying Jimenez’s request to proceed IFP on appeal, the district
court certified, pursuant to
    28 U.S.C. § 1915
    (a)(3), that the appeal was not taken
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51247    Document: 00512322531      Page: 2   Date Filed: 07/26/2013
No. 12-51247
in good faith. By moving in this court for leave to proceed IFP, Jimenez is
challenging the district court’s certification decision. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
To proceed IFP, a litigant must be economically eligible, Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982), and the appeal must be taken in good faith.
Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). An appeal is taken in good
faith if it raises legal points that are arguable on the merits and thus
nonfrivolous.
    Id.
    Consistent with his filings in the district court, Jimenez insists that his
rights were infringed when he was arrested and then jailed in connection with
charges that were later dismissed. Our de novo review of the record and
Jimenez’s brief shows no potential nonfrivolous appellate claims. See Geiger v.
Jowers,
    404 F.3d 371
    , 373 (5th Cir. 2005). Insofar as Jimenez raises a claim
concerning denial of access to courts against one defendant, it lacks merit
because he has not shown that the alleged interference with access to legal and
writing materials actually hampered his ability to bring or maintain a suit. See
Eason v. Thaler,
    73 F.3d 1322
    , 1328 (5th Cir. 1996). With respect to his claims
against the remaining defendants, he alleges only that some of them should be
liable to him because they held supervisory positions. This theory is not viable.
See James v. Tex. Collin Cnty.,
    535 F.3d 365
    , 373-74 (5th Cir. 2008); Thompkins
v. Belt,
    828 F.2d 298
    , 303-04 (5th Cir. 1987).
Although he now argues that he should have been permitted to amend his
complaint, the record shows that he filed an amended complaint and did not
request authorization to further amend the complaint. Jimenez has not shown
that he will raise a nonfrivolous appellate issue. See Howard,
    707 F.2d at 220
    .
Consequently, we deny his IFP motion and dismiss his appeal as frivolous. See
5TH CIR. R. 42.2; Baugh v. Taylor,
    117 F.3d 197
    , 202 n.24 (5th Cir. 1997).
The district court’s dismissal of Jimenez’s § 1983 action and this court’s
dismissal of his appeal count as two strikes for purposes of
    28 U.S.C. § 1915
    (g).
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No. 12-51247
See Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996). Additionally, he
has at least one other strike. See Jimenez v. Bexar Cnty. Adult Det. Ctr., No.
5:11-cv-00106-FB (W.D. Tex. Apr. 4, 2011). He is thus barred from proceeding
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).
We caution Jimenez that frivolous, repetitive, or otherwise abusive filings
will invite the imposition of sanctions, including dismissal, monetary sanctions,
and/or restrictions on his ability to file pleadings in this court and any court
subject to this court’s jurisdiction. To avoid such sanctions, Jimenez should
review his pending appeals and actions and move to dismiss any that are
frivolous.
APPEAL DISMISSED; IFP MOTION DENIED;
    28 U.S.C. § 1915
    (g) BAR
IMPOSED; SANCTION WARNING ISSUED.
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