Mario Cabello v. United States , 427 F. App'x 398 ( 2011 )

Case: 10-50961 Document: 00511500464 Page: 1 Date Filed: 06/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2011
No. 10-50961
Summary Calendar Lyle W. Cayce
Clerk
MARIO CABELLO,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CV-477
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mario Cabello, federal prisoner # 99277-080, seeks leave to proceed in
forma pauperis (IFP) on appeal following the dismissal without prejudice for lack
of subject matter jurisdiction of his complaint for damages filed pursuant to the
Federal Tort Claims Act. Cabello’s complaint stemmed from injuries he suffered
in a work-related accident while he was incarcerated at the Bastrop Federal
Correctional Institution. He claimed that following the accident, he received
negligent medical treatment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50961 Document: 00511500464 Page: 2 Date Filed: 06/07/2011
No. 10-50961
Cabello’s IFP motion 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. 1997). Our inquiry into whether an appeal is taken in 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). We review a dismissal for lack
of subject matter jurisdiction de novo. See Freeman v. United States, 556 F.3d
326, 334 (5th Cir. 2009).
Because Cabello’s injury was work-related, the district court correctly
determined that the Inmate Accident Compensation Act, 18 U.S.C. § 4126,
provided Cabello’s exclusive remedy. See Aston v. United States, 625 F.2d 1210,
1211 (5th Cir. 1980); United States v. Demko, 385 U.S. 149, 152 (1966). The
district court did not err in dismissing Cabello’s complaint for lack of
jurisdiction. See United States v. Cole, 376 F.2d 848, 849 (5th Cir. 1967).
Nor has he demonstrated that the district court’s denial of his Federal
Rule of Civil Procedure 59(e) motion was based upon manifest errors of law or
fact or presented newly discovered evidence. See Templet v. HydroChem, Inc.,
367 F.3d 473, 478 (5th Cir. 2004). Accordingly, Cabello has not demonstrated
that the district court abused its discretion by denying his motion. See Midland
West Corp. v. Fed. Deposit Ins. Corp., 911 F.2d 1141, 1145 (5th Cir. 1990).
Cabello’s appeal is without arguable merit and thus it is frivolous.
See Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is dismissed.
See 5 TH C IR. R. 42.2. He is cautioned that the dismissal of this appeal as
frivolous counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Also, Cabello is cautioned that
if he accumulates three strikes under § 1915(g), he will not be allowed 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).
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Case: 10-50961 Document: 00511500464 Page: 3 Date Filed: 06/07/2011
No. 10-50961
APPEAL DISMISSED; SANCTION WARNING ISSUED. MOTION FOR
IFP DENIED.
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