Sanchez v. Galvan

Case: 21-51165 Document: 00516552864 Page: 1 Date Filed: 11/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-51165
FILED
November 21, 2022
Cruz E. Sanchez, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Sergeant Galvan; Officer Escamilla; Officer Casillos;
Officer Carrasco; Corporal Payne; Officer LeBlanc;
Officer Burrowls; Officer Grissom; Nurse Jessica
Allen; Corporal Garcia,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CV-43
Before Higginbotham, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Cruz E. Sanchez, Texas prisoner # 2351055, requests leave to proceed
in forma pauperis (IFP) in his appeal of the district court’s grant of summary
judgment and dismissal with prejudice of his 42 U.S.C. § 1983 complaint. He
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-51165 Document: 00516552864 Page: 2 Date Filed: 11/21/2022
No. 21-51165
also requests appointment of counsel. To proceed IFP, Sanchez must
demonstrate financial eligibility and a nonfrivolous issue for appeal. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). We review a district
court’s summary-judgment dismissal de novo. See Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012).
The district court summarized Sanchez’s claims as follows: excessive
use of force; failure to provide meals appropriate for Sanchez’s medical
condition; failure to prevent Sanchez’s suicide attempt; misplacing or
stealing personal property; retaliation against Sanchez due to his numerous
grievances by changing his meal plan, requesting that he be handcuffed and
shackled while going to medical appointments, and instituting disciplinary
proceedings against him; supervisory liability; and harassment and physical
and mental abuse. On appeal, Sanchez largely fails to mention the district
court’s reasons for granting summary judgment and dismissing the instant
case. To the extent that Sanchez failed to identify any error in the district
court’s analysis, he has abandoned any challenge he might have raised
regarding the decision. 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).
As to Sanchez’s claims of harassment, threats, and retaliation, he does
not explain how the alleged acts violated his constitutional rights. See
Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002); Jones v. Greninger,
188 F.3d 322, 324-25 (5th Cir. 1999); Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). To the
extent that he argues the district court prevented him from conducting
discovery, Sanchez does not explain how additional discovery would have
created a genuine issue of material fact. See Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 162 (5th Cir. 2006).
2
Case: 21-51165 Document: 00516552864 Page: 3 Date Filed: 11/21/2022
No. 21-51165
Because Sanchez has not demonstrated that his appeal involves “legal
points arguable on their merits,” his motion to proceed IFP is DENIED,
and his appeal is DISMISSED as frivolous. Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citation omitted); see Baugh
v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2. His
motion for appointment of counsel is DENIED as moot.
The dismissal of this appeal as frivolous counts as a “strike” under 28
U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 537-39 (2015).
Sanchez is WARNED that if he accumulates three strikes, he will not be
able 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