Case: 14-11230      Document: 00513136159         Page: 1    Date Filed: 07/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 14-11230                             July 30, 2015
                                                                              Lyle W. Cayce
PEDRO RODRIGUEZ-CORTEZ,                                                            Clerk


                                                 Plaintiff-Appellant

v.

DALBY CORRECTIONAL FACILITY; WARDEN L. BOND, Dalby's Official
Administrative Authority; LIEUTENANT V. JUAREZ, Dalby's Offical
Authorizing Supervisor; SIA M. MENDEZ, Dalby's Official; MRS. NFN
COPELAND, Dalby's F.C. Food Service Departament; MR. NFN GOMEZ,
Dalby's F.C. Food Service Departament; MR. NFN BARRON, Dalby's F.C.
Food Service Departament; MRS. NFN MOLINA, Dalby's Food Service
Departament; MEDICAL DEPARTMENT,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CV-12


Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Pedro Rodriguez-Cortez, federal prisoner # 62394-080, moves for leave
to proceed in forma pauperis (IFP) on appeal. He filed this 42 U.S.C. § 1983
action against various medical and prison personnel at the Giles W. Dalby


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11230

Correctional Facility (Dalby Facility), a private correctional facility operated
pursuant to a contract with the Federal Bureau of Prisons. Rodriguez-Cortez
alleged that the defendants employed with the Dalby Facility Food Service
Department and the medical department acted with deliberate indifference to
his serious medical needs, discriminated and retaliated against him, and
wrongfully treated him during his incarceration at the Dalby Facility.
      Rodriguez-Cortez consented to proceed before the magistrate judge, who
conducted an evidentiary hearing pursuant to Spears v. McCotter, 

, 181-82 (5th Cir. 1985).    Following the hearing, the magistrate judge
dismissed Rodriguez-Cortez’s action as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2) and 28 U.S.C. § 1915A. Because Rodriguez-Cortez complained of
constitutional violations that allegedly occurred during his incarceration as a
federal prisoner, the magistrate judge construed his action as one filed
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971). Citing Minneci v. Pollard, 

, 620, 626 (2012),
the magistrate judge concluded that because Texas tort law provided an
adequate alternative remedy, Bivens did not authorize an action for damages
against the Dalby Facility employees for alleged inadequate medical care. The
magistrate judge further concluded that based on Rodriguez-Cortez’s amended
complaint, his testimony at the Spears hearing, and the authenticated records,
there was no indication that the defendants acted with deliberate indifference
to his medical needs, discriminated against him, retaliated against him, or
wrongfully treated him in any way, and that Rodriguez-Cortez had not stated
a constitutional claim. The magistrate judge denied Rodriguez-Cortez’s motion
to proceed IFP on appeal, certifying that his appeal was not taken in good faith
pursuant to § 1915(a)(3) and FED. R. APP. P. 24(a)(3).




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                                   No. 14-11230

      By moving to proceed IFP, Rodriguez-Cortez is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 

, 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, 

, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). We may dismiss
the appeal under 5th Circuit Rule 42.2 if it is frivolous. See 

n.24; 5TH CIR. R. 42.2.
      Rodriguez-Cortez does not challenge the district court’s reasons for
dismissing his complaint or denying him leave to proceed IFP on appeal. Pro
se briefs are afforded liberal construction. Yohey v. Collins, 

, 225
(5th Cir. 1993). Nevertheless, when an appellant fails to identify any error in
the district court’s analysis, it is the same as if the appellant had not appealed
that issue. Brinkmann v. Dallas County Deputy Sheriff Abner, 

,
748 (5th Cir. 1987). Because Rodriguez-Cortez has failed to challenge any legal
aspect of the district court’s disposition of his complaint or the certification that
his appeal is not taken in good faith, he has abandoned the critical issues of
his appeal.     

appeal lacks arguable merit and is therefore
frivolous.    See 

.        Accordingly, Rodriguez-Cortez’s
motion for leave to proceed IFP on appeal is DENIED, and his appeal is
DISMISSED as frivolous. See 

n.24; 5TH CIR. R. 42.2.
His motion for appointment of counsel is also DENIED.
      We hereby inform Rodriguez-Cortez that the dismissal of this appeal as
frivolous counts as a strike for purposes of § 1915(g), in addition to the strike
for the district court’s dismissal. See Adepegba v. Hammons, 

, 387
(5th Cir. 1996). We caution Rodriguez-Cortez that once he accumulates three
strikes, he may not proceed IFP in any civil action or appeal filed while he is



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                                 No. 14-11230

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;
APPOINTMENT OF COUNSEL DENIED.




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