Maria Delgado v. United States Marshals

Case: 14-31092 Document: 00513225150 Page: 1 Date Filed: 10/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31092
United States Court of Appeals
Fifth Circuit
FILED
MARIA AIDE DELGADO, October 8, 2015
Lyle W. Cayce
Plaintiff-Appellant Clerk
v.
UNITED STATES MARSHALS; JOHN DOE, #1 Department of Corrections
Employee; JOHN DOE, #2, Captain at Iberia Parish Jail; SHERIFF OF
IBERIA PARISH; WARDEN IBERIA PARISH JAIL,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CV-347
Before JONES, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Maria Aide Delgado, federal prisoner # 68452-179, filed the instant 42
U.S.C. § 1983 suit to raise numerous claims concerning the conditions she
encountered at the Iberia Parish Jail (IPJ). The district court dismissed her
suit pursuant to 28 U.S.C. § 1915 after determining that it was frivolous and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-31092
failed to state a claim upon which relief could be granted. Now, she moves for
authorization to proceed in forma pauperis (IFP) on appeal.
By moving to proceed IFP, Delgado is challenging the district court’s
certification that her appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s 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) (internal quotation marks and citation omitted). The appeal may be
dismissed if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
We conduct a de novo review of the district court’s dismissal of Delgado’s
claims. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Delgado has not shown that the district court erred when it concluded
that her appeal was not taken in good faith. To raise a cognizable § 1983 claim,
one must show that a state actor was personally involved with a violation of
his constitutional rights or that the state actor’s conduct resulted in such a
violation. Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008). Consequently,
insofar as Delgado argues that others’ rights were infringed, these arguments
do not show that the instant appeal is taken in good faith. See id. We decline
to consider those claims argued in Delgado’s brief that were not raised in the
district court, such as her claims concerning the programs available at IPJ.
See Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
Delgado notes that she raised an access to courts claim in the district
court but fails to identify any error in the district court’s reasons for rejecting
this claim. Accordingly, she has not shown that she has a nonfrivolous
appellate claim concerning the denial of access to courts. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
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Delgado has not shown that she will raise a nonfrivolous claim
concerning the conditions of her confinement. The Constitution neither
requires prison facilities to be comfortable nor permits such institutions to be
“inhumane.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Accordingly,
subjecting inmates to “restrictive and even harsh” conditions does not
implicate the Constitution. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Delgado presents several arguments concerning the conditions she
encountered at IPJ, including allegations of unclean and poorly maintained
facilities, cold food, poor-quality linens, and limited toilet paper. Although the
circumstances Delgado faced at IPJ may well have been unpleasant, her
allegations do not show that conditions at IPJ were “inhumane.” See Farmer,
511 U.S. at 832. Additionally, she does not allege that she suffered any injury
due to these conditions. See 42 U.S.C. § 1997e(e); Alexander v. Tippah Cnty.,
Miss., 351 F.3d 626, 631 (5th Cir. 2003).
Insofar as Delgado argues that she did not receive prompt medical
attention for injuries sustained when other inmates were fighting, she has not
stated a viable deliberate indifference claim with respect to these injuries
because she does not allege that any of the defendants even knew she was
injured, much less that they ignored her serious medical needs. See Mesa, 543
F.3d at 274. Delgado’s complaint that her repeated requests to be transferred
to another facility were denied does not show a nonfrivolous appellate claim
because she “has no constitutional right to be incarcerated in the facility of
[her] choice.” See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Tighe v. Wall,
100 F.3d 41, 42 (5th Cir. 1996). Finally, her contention that the district court
should have held an evidentiary hearing is unavailing because she was
permitted to amend her complaint. See Bazrowx v. Scott, 136 F.3d 1053, 1054
(5th Cir. 1998).
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Delgado has failed to show that her appeal involves any arguably
meritorious issue. See Howard, 707 F.2d at 220. Accordingly, her motion for
leave to proceed IFP on appeal is denied, and this appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.
The district court’s dismissal of Delgado’s § 1983 complaint and our
dismissal of this appeal as frivolous count as two strikes for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
We warn Delgado that once she accumulates three strikes, she may not proceed
IFP in any civil action or appeal filed while she is incarcerated or detained in
any facility unless she is under imminent danger of serious physical injury.
See § 1915(g).
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTIONS WARNING ISSUED.
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