Thoele v. Lewis ( 2021 )

Case: 20-20549 Document: 00516100619 Page: 1 Date Filed: 11/19/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 19, 2021
No. 20-20549
Summary Calendar Lyle W. Cayce
Clerk
Troy Daniel Thoele,
Plaintiff—Appellant,
versus
Billy Lewis, Senior Warden, Huntsville Unit; James Jones, Former
Senior Warden, Huntsville Unit; Darron Lane, Major, Huntsville Unit;
Michael Proctor, Captain, Huntsville Unit; Jason Lightsey,
Captain, Huntsville Unit; Scott Bailey, Corrections Officer, Huntsville
Unit; Aleticia Glasgow, Corrections Officer, Huntsville Unit;
Candace Pace, Counsel Substitute, Huntsville Unit,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4018
Case: 20-20549 Document: 00516100619 Page: 2 Date Filed: 11/19/2021
No. 20-20549
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Troy Daniel Thoele, Texas prisoner # 1784662, has applied for leave
to proceed in forma pauperis (IFP) in this appeal from the dismissal of his
civil rights complaint as frivolous and for failure to state a claim upon which
relief may be granted. By moving for leave to proceed IFP, Thoele is
challenging the district court’s determination that his appeal is not taken in
good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A motion for
leave to proceed IFP on appeal “must be directed solely to the trial court’s
reasons for the certification decision.” Id. Our inquiry into 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 citations omitted). If we uphold the
district court’s certification that the appeal is not taken in good faith, Thoele
must pay the appellate filing fee or the appeal will be dismissed for want of
prosecution. Baugh, 117 F.3d at 202. However, we may dismiss the appeal
as frivolous when it is apparent that an appeal would be meritless. 5th Cir.
R. 42.2; Baugh, 117 F.3d at 202 n.24.
The district court must dismiss a prisoner-filed IFP civil rights action
that is frivolous or fails to state a claim on which relief may be granted. See
28 U.S.C. § 1915A(a)–(b)(1); 28 U.S.C. § 1915(e)(2)(B)(i)–(ii).
In his complaint, Thoele sought declaratory and injunctive relief only.
The district court determined that Thoele’s transfer from the Huntsville
Unit to the Boyd Unit of the Texas Department of Criminal Justice (TDCJ)
rendered his claims for declaratory and injunctive relief moot. See Herman v.
*
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.
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No. 20-20549
Holiday, 238 F.3d 660, 665 (5th Cir. 2001). The court determined in the
alternative that Thoele’s constitutional claims were frivolous or failed to
state a claim upon which relief may be granted. Finally, the district court
denied Thoele’s motion to add the TDCJ, Bryan Collier, and Deborah
Cockrell as additional defendants.
Thoele does not dispute that his claims for declaratory and injunctive
relief against the original defendants are moot. Instead, Thoele challenges
the district court’s sua sponte dismissal of his complaint under the screening
provisions of § 1915 and § 1915A. He complains that the defendants were
never served; that he did not have an opportunity to conduct discovery; and
that he was not given an opportunity to amend his complaint to assert damage
claims against the eight original defendants and the TDCJ, Collier, and
Cockrell. Thoele contends that he has been exposed to excessive heat; that
defendants have been deliberately indifferent to his related medical
condition; that his right to due process was violated during a prison
disciplinary proceeding; that he was denied effective assistance of counsel
substitute; that defendants retaliated against him for using the grievance
process and because of his litigiousness; that his right to equal protection was
violated during the disciplinary proceeding; and that defendants failed to
protect him from violent offenders with whom he was housed.
We have examined Thoele’s constitutional claims and conclude that
providing Thoele with an opportunity to recast them as claims for damages
would be futile. See Aldridge v. Miss. Dep’t of Corr., 990 F.3d 868, 878 (5th
Cir. 2021); Rhodes v. Bureau of Prisons, 477 F.2d 347, 348 (5th Cir. 1973). The
claims against the TDCJ, Collier, and Cockrell have not been briefed and,
therefore, are forfeited. 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).
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No. 20-20549
Thoele has failed to show that he has a nonfrivolous issue for appeal.
See Howard, 707 F.2d at 220. The motion for leave to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous. See 5th Cir. R.
42.2; Baugh, 117 F.3d at 202 n.24.
Under § 1915(g), a prisoner may not bring a civil action or appeal IFP
if he has, on three or more occasions, while incarcerated or detained, brought
an action or appeal that was dismissed as frivolous, malicious, or for failure
to state a claim. The district court’s dismissal of the instant complaint as
frivolous and for failure to state a claim upon which relief may be granted
counts as a strike under § 1915(g), and our dismissal of this appeal as frivolous
also counts as a strike. See Coleman v. Tollefson, 575 U.S. 532, 537-38 (2015).
Thoele has a third strike in Thoele v. Abbott, No. A-15-CA-997-SS, 2015 WL
8516676 (W.D. Tex. Dec. 11, 2015) (unpublished) (dismissing complaint as
frivolous because it asserted claims that were time barred); see also Gonzalez
v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998).
Thoele now has at least three strikes under § 1915(g) and is therefore
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).
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