Pedro Torres v. Federal Satellite Low La Tuna , 363 F. App'x 293 ( 2010 )

Case: 09-50586 Document: 00511013330 Page: 1 Date Filed: 01/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2010
No. 09-50586
Summary Calendar Charles R. Fulbruge III
Clerk
PEDRO A. TORRES,
Petitioner-Appellant
v.
FEDERAL SATELLITE LOW LA TUNA, Bragg Travis Chief Executive Officer,
Federal Satellite Low La Tuna,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CV-214
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Pedro A. Torres, federal prisoner # 85356-080, moves this court to proceed
in forma pauperis (IFP) in this appeal from the district court’s denial of his pro
se petition for writ of quo warranto challenging the authority of the Federal
Bureau of Prisons (BOP), Federal Satellite Low La Tuna (La Tuna), and prison
officials to discipline him for possessing and using a cell phone while he was
assigned duties at Biggs Army Airfield in El Paso, Texas. The district court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50586 Document: 00511013330 Page: 2 Date Filed: 01/27/2010
No. 09-50586
denied Torres’s request to proceed IFP on appeal certifying that the appeal was
not taken in good faith. Torres’s IFP motion in this court is a challenge to the
district court’s certification that his appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1992).
Torres’s argument that the BOP and La Tuna officials lacked authority or
jurisdiction to discipline him for alleged BOP violations that occurred on the
military base, not in a BOP facility, is not supported by federal regulations or
statutes. See 28 C.F.R. § 541.10(a); 18 U.S.C. §§ 4042(a)(3), 4125(a), (e). Torres’s
assertions that the district court joined in some sort of conspiracy with BOP and
La Tuna officials to deprive him of his constitutional rights and acted “under
passion and prejudice” in denying his petition are unfounded. Although he
states that the district court did not address his claims that the disciplinary
proceedings and findings violated the Administrative Procedures Act, he makes
no argument that such claims were properly included in his quo warranto
petition, see Harris v. Houston, 151 F.3d 186, 202 n.15 (5th Cir. 1998), or that
the district court should have separated out these claims and construed them as
some other type of proceeding.
Torres has not shown that he will present a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion for leave for
IFP on appeal is denied. See Baugh, 117 F.3d at 202 n.24. The appeal is
dismissed as frivolous. See 5 TH C IR. R. 42.2.
Our dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Torres is cautioned that if he accumulates three strikes under § 1915(g),
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).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
2