Citing concerns over the COVID-19 pandemic, federal inmate Rafael Daniel De La Cruz Jimenez petitioned the district court for an injunction compelling the respondents, Bureau of Prisons officials, to release him to home confinement under the provisions of the CARES Act of 2020 and the Attorney Generals accompanying memoranda, arguing that the CARES Act created a contractual and due process right to release for qualifying inmates. The district court denied relief, finding that De La Cruz Jimenez had failed to state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B)(ii). In conjunction with his appeal of that ruling, De La Cruz Jimenez moves this court for leave to proceed in forma pauperis (IFP), challenging the district courts determination that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
De La Cruz Jimenez fails to present a nonfrivolous argument that the district court abused its discretion by denying an injunction. See Aransas Project v. Shaw, 775 F.3d 641, 663 (5th Cir. 2014); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). He cites no legal authority, nor are we aware of any, holding that the CARES Act created an actionable right to release even for qualifying inmates or a corresponding duty of the respondents to release him. Therefore, De La Cruz Jimenez failed to state a claim on which relief may be granted and, as such, could not arguably meet the standard for granting an injunction. See Envt Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d 507, 533 (5th Cir. 2016); Harris Cty., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 312 (5th Cir. 1999); § 1915(e)(2)(B)(ii).
In light of the above, the district court did not abuse its discretion by denying IFP status. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Accordingly, the motion to proceed IFP on appeal is DENIED. Furthermore, because the merits of De La Cruz Jimenezs appeal are so intertwined with the IFP certification decision as to constitute the same issue, the appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2.
The dismissal of De La Cruz Jimenezs civil action for failure to state a claim and the dismissal of the instant appeal as frivolous both count as strikes against him under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 135 S. Ct. 1759, 1761-64, 191 L.Ed.2d 803 (2015); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). De La Cruz Jimenez is accordingly WARNED that if he accumulates three strikes, he will not be able 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).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
FOOTNOTES
FOOTNOTE
Per Curiam:*
FN* 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.