Oscar Armando v. William Stephens, Director, et al

Filing

UNPUBLISHED OPINION FILED. [15-10823 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 02/22/2017; denying motion for summary judgment and for summary disposition filed by Appellant Mr. Oscar Armando [8066507-2]; denying motion for judicial notice filed by Appellant Mr. Oscar Armando [8221577-2], denying motion for judicial notice filed by Appellant Mr. Oscar Armando [8180892-2]; denying motion to enforce or further relief filed by Appellant Mr. Oscar Armando [8225918-2], denying motion for temporary restraining order filed by Appellant Mr. Oscar Armando [8293662-2]; denying motion to appoint counsel filed by Appellant Mr. Oscar Armando [8016293-2], denying motion to appoint counsel filed by Appellant Mr. Oscar Armando [8059589-2] [15-10823]

Case: 15-10823

Document: 00513858378

Page: 1

Date Filed: 02/01/2017

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

No. 15-10823
Summary Calendar

FILED
February 1, 2017
Lyle W. Cayce
Clerk

OSCAR ARMANDO, also known as Oscar Armando Sarrez, also known as
Oscar Armando Mendoza, also known as Oscar Armando Escobar,
Plaintiff-Appellant
v.
LORIE DAVIS; STATE CLASSIFICATION AND RECORD,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-181
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Oscar Armando, Texas prisoner # 1361831, appeals the dismissal of his
42 U.S.C. § 1983 complaint. Additionally, he moves for summary judgment,
judicial notice, enforcement and further relief, the appointment of counsel, and
a temporary restraining order.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10823
Armando’s claims stemmed from his assignments to the Roach and
Wallace Units between 2008 and 2012. Specifically, he alleged that, due to the
deliberate indifference of the defendants, he was assaulted in 2008 on the
Roach Unit and sustained injuries; despite this, he was reassigned to the Roach
Unit in 2010; officials then transferred him to the Wallace Unit where he was
assaulted on October 1, 2012, and sustained injuries; and he was thereafter
reassigned to the Roach Unit, where he got into a fight. The district court
dismissed Armando’s claims as frivolous, malicious, and for failure to state a
claim.
Armando has not briefed any challenge to the district court time bar
dismissal of his claim regarding the 2008 incident on the Roach Unit or the
court’s res judicata ruling as to his claim regarding the October 2012 incident
on the Wallace Unit. He has thus abandoned the claims. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Regarding Armando’s claims

stemming from his second and third assignments to the Roach Unit in 2010
and 2012, the facts he alleged in the district court failed to show that the
defendants acted with deliberate indifference to a substantial risk of serious
harm. We thus find no error in the district court’s dismissal of these claims.
See Farmer v. Brennan, 511 U.S. 825, 828, 837 (1994); Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009). Accordingly, we AFFIRM the district court’s
judgment.
Turning to Armando’s numerous motions, his request for summary
judgment pursuant to Federal Rule of Civil Procedure 56 is DENIED. Such a
motion is properly filed in the district court. To the extent Armando seeks
summary disposition, his motion is likewise DENIED. Given his conclusory
allegations, the absence of any foreclosed issues, and the posture of this case,

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No. 15-10823
summary disposition is inappropriate. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
Armando’s motions for judicial notice are DENIED as well. Judicial
notice applies only to facts not subject to reasonable dispute. FED. R. EVID.
201(b). The facts alleged in Armando’s first motion are subject to reasonable
dispute. The facts alleged in his second motion, while not subject to reasonable
dispute, are not properly before this court and do not aid in the disposition of
this appeal.
Next, even with the benefit of liberal construction, the assertions in
Armando’s motion to enforce or for further relief are incomprehensible.
Accordingly, we DENY the motion. See United States v. Cothran, 302 F.3d 279,
286 n.7 (5th Cir. 2002); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Armando’s motions for appointment of counsel are likewise DENIED as the
case does not present exceptional circumstances. See Baranowski v. Hart, 486
F.3d 112, 126 (5th Cir. 2007); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Finally, we DENY Armando’s motion for a temporary restraining order
because he has not made the requisite showing. See FED. R. APP. P. 8(a)(2)(A).
The district court’s dismissal of Armando’s § 1983 complaint as frivolous,
malicious, and for failure to state a claim on which relief may be granted counts
as a strike under 28 U.S.C § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759,
1763 (2015); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Armando is WARNED that if he accumulates three strikes, he will not be
allowed to proceed IFP in any civil action or appeal unless he “is under
imminent danger of serious physical injury.” § 1915(g).

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