Villareal v. Casal, et al

* 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this opinion should not be published and is not precedent except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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United States Court of Appeals
Fifth Circuit
F I L E D
April 28, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-50456
Summary Calendar
JOSE ANTHONY VILLAREAL,
Plaintiff-Appellant,
versus
JOSEPH CASAL; TERESA MCCOMB; ROXIE HERNANDEZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(4:02-CV-138)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Anthony Villareal, Texas prisoner number 913759, filed
the instant 42 U.S.C. § 1983 suit to seek redress for the
defendants’ alleged failure to protect him from being assaulted by
another inmate. The district court dismissed his suit and
certified that his appeal was not taken in good faith. Villareal
challenges the district court’s certification decision pursuant to

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Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), and he requests
that this court grant him authorization to proceed IFP on appeal.
Villareal maintains that the defendants knew or should have
known of his attacker’s violent tendencies and that they violated
his constitutional rights by failing to protect him from the other
inmate. The record evidence refutes these contentions and supports
the district court’s dismissal of Villareal’s suit. See Resident
Council v. United States Dep’t of Hous. and Urban Dev., 980 F.2d
1043, 1050 (5th Cir. 1993).
Villareal has failed to show that his 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). Accordingly, his motion for
authorization to proceed IFP on appeal is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24.
The dismissal of Villareal’s appeal as frivolous by this court
counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Villareal is
cautioned that once he accumulates three strikes, he may not
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 28 U.S.C. §
1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED

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