Case: 23-40213 Document: 00516875472 Page: 1 Date Filed: 08/28/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
August 28, 2023
No. 23-40213
____________ Lyle W. Cayce
Clerk
Santiago Mason Gomez,
Plaintiff—Appellant,
versus
Odunay O. Kuku; Assistant Warden LaMorris Marshall;
Assistant Warden Juan J. Nunez; Lieutenant A.
Abdulmalik; Sergeant Mis Enojosa,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:22-CV-457
______________________________
Before Jones, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Santiago Mason Gomez, Texas prisoner # 01852089, filed a 42 U.S.C.
§ 1983 complaint in the Eastern District of Texas alleging that various
employees of the Texas Department of Criminal Justice (TDCJ) were
_____________________
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
Case: 23-40213 Document: 00516875472 Page: 2 Date Filed: 08/28/2023
No. 23-40213
conspiring to have him killed; one of the means of effectuating that plan was
to proclaim that Gomez had previously died, which would then allow the
other inmates to kill him without repercussions. Claims involving some
defendants located in the Southern District of Texas were severed and
transferred to that court. The district court dismissed the allegations
remaining in Gomez’s complaint for failure to state a claim upon which relief
may be granted and denied Gomez leave to proceed in forma pauperis (IFP)
on appeal. See 28 U.S.C. § 1915A(b)(1). Gomez has now filed a motion for
authorization to proceed IFP on appeal, which constitutes a challenge to the
district court’s certification that any appeal would not be taken in good faith
because Gomez will not present a nonfrivolous appellate issue. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Before this court, Gomez argues that he filed his lawsuit based on the
danger to his life and that the dismissal of his action will result in his death.
He also appears to assert that he had a First Amendment right to provide
information about individuals responsible for contraband in the prisons,
which he alleges was the impetus for the plot against him. He does not,
however, address the conclusions of the district court that his vague
allegations were insufficient to show that the defendants were part of a far-
reaching TDCJ conspiracy or that their actions resulted in harm to him. His
failure to make these arguments results in the abandonment of his claims. See
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Gomez does contend that the district court was biased and dismissed
his lawsuit and denied him IFP status in retaliation for his assertion that he
would hold the court responsible for any harm he suffers and that he should
not suffer retaliation for engaging in his First Amendment rights, including
his right to file the instant lawsuit. He does not present a nonfrivolous
argument showing that the dismissal of his lawsuit was the result of judicial
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No. 23-40213
bias. See Liteky v. United States, 510 U.S. 540, 555 (1994); Baugh, 117 F.3d at
202.
Gomez also asserts that the district court erred in denying his request
for appointment of counsel. This does not constitute a nonfrivolous appellate
issue, as he has not established exceptional circumstances warranting
appointment of an attorney. See Baugh, 117 F.3d at 202; Jackson v. Dallas
Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v. Chancellor, 691 F.2d
209, 212-13 (5th Cir. 1982).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Gomez’s motion to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED. See
5th Cir. R. 42.2. The dismissal of this appeal counts as a strike under
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996), abrogated in part on other grounds, Coleman v. Tollefson, 575 U.S. 532,
537 (2015). In addition, the district court’s dismissal of the original
complaint for failure to state a claim upon which relief may be granted also
counts as a strike. See § 1915(g); Adepegba, 103 F.3d at 388. Gomez is
WARNED that if he accumulates three strikes, he will no longer 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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