Oscar Armando v. Lorie Davis, Director, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [16-11178 Dismissed as Frivolous] Judge: PRO, Judge: JWE, Judge: GJC. Mandate pull date is 06/22/2017; denying motion for judicial notice filed by Appellant Mr. Oscar Armando [8295804-2]; denying motion to proceed IFP filed by Appellant Mr. Oscar Armando [8290667-2] [16-11178]

Case: 16-11178

Document: 00514015439

Page: 1

Date Filed: 06/01/2017

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

FILED
No. 16-11178

June 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, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; RECORDS; UCC
STATE CLASSIFICATION COMMITTEE MEMBERS,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:15-CV-93
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Oscar Armando, Texas prisoner # 1361831, moves for leave to proceed in
forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. § 1983
complaint. Additionally, he moves to enforce or for further relief.
In dismissing Armando’s complaint as frivolous pursuant to 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(i), the magistrate judge found that it was
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11178

Document: 00514015439

Page: 2

Date Filed: 06/01/2017

No. 16-11178
barred by the applicable two-year statute of limitations and that it raised
claims which were either raised in Armando v. Guerrero, No. 1:13-CV-040
(N.D. Tex.) or could have been raised therein.
For the following reasons, Armando has not shown that his appeal
presents legal points that are arguable on the merits and thus nonfrivolous.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). First, Armando’s argument
that his instant cause of action did not accrue until he received a copy of
Warden Matt Kennelly’s affidavit in Armando v. Guerrero is unavailing.
Accrual occurred in 2012 when he sustained injuries after the denial of his
transfer to another prison. See Piotrowski v. City of Houston, 237 F.3d 567,
576 (5th Cir. 2001). Thereafter, he untimely filed this action in 2015. See
Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006).
Next, Armando has briefed no challenge to the magistrate judge’s
alternative ruling that his instant action is duplicative of the claims he raised
in Armando v. Guerrero. Accordingly, he has abandoned any challenge to that
ruling. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Because Armando has failed to raise a legal point for appeal that is
arguable on the merits, we deny his motion to proceed IFP on appeal and
dismiss the appeal as frivolous. See Howard, 707 F.2d at 220; Baugh v. Taylor,
117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5TH CIR. R. 42.2. In light of our
dismissal and the lack of clarity in Armando’s motion to enforce or for further
relief, we deny that motion as well. See Grant v. Cuellar, 59 F.3d 523, 524-25
(5th Cir. 1995).
MOTIONS DENIED and APPEAL DISMISSED.

2