Robert McCoy v. Craig Stokes, et al

Filing 511159936

Robert McCoy v. Craig Stokes, et al

Doc. 511159936

Case: 10-30167

Document: 00511159936

Page: 1

Date Filed: 06/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30167 S u m m a r y Calendar June 30, 2010 Lyle W. Cayce Clerk

R O B E R T LEROY MCCOY, P la in t if f -A p p e lla n t , versu s C R A I G STOKES; LARRY C. DEAN; ROBERT PARKER; DANIEL TALLEY; S H E R I F F 'S OFFICE BOSSIER PARISH, D e fe n d a n t s -A p p e lle e s .

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 5:08-CV-1918

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:*

R o b e r t McCoy, Louisiana inmate # 55949, moves this court for leave to ap-

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 10-30167

Document: 00511159936 Page: 2 No. 10-30167

Date Filed: 06/30/2010

p e a l in forma pauperis ("IFP") following the entry of summary judgment dism is s in g his civil rights complaint. By moving for leave to appeal IFP, McCoy has c h a lle n g e d the district court's determination that the appeal is not taken in good fa it h . See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court's inquiry into whether the appeal is taken in good faith "is limite d to whether the appeal involves `legal points arguable on their merits (and t h e r e fo r e not frivolous).'" Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (c it a t io n omitted). If we uphold the district court's certification that the appeal is not taken in good faith, McCoy must pay the appellate filing fee, or the appeal w ill be dismissed for want of prosecution. See Baugh, 117 F.3d at 202. If the app e a l is frivolous, we may dismiss it sua sponte under 5th Cir. R. 42.2. Id. at 202 n .2 4 . M c C o y has waived the issue whether the appeal is taken in good faith by fa ilin g to challenge any aspect of the district court's determination that McCoy d id not allege a constitutional violation by any named defendant. See Hughes v . Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Moreover, the record reveals no e r r o r in the dismissal. Because the appeal does not present any legal points arguable on their m e r it s , the motion for leave to proceed IFP is denied, and the appeal is dismissed a s frivolous. See Baugh, 117 F.3d at 202 & n. 24. The dismissal counts as a s t r ik e under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 3878 8 (5th Cir. 1996). McCoy is cautioned that if he accumulates three strikes, he w ill not be allowed to proceed IFP in any civil action or appeal filed while he is d e t a in e d or incarcerated in any facility unless he is under imminent danger of s e r io u s physical injury. See § 1915(g). I F P DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

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