Curtis Evans v. Marshall Fisher, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [15-60849 Dismissed as Frivolous] Judge: EBC, Judge: ECP, Judge: SAH. Mandate pull date is 03/06/2017; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Curtis Evans [8140081-2] [15-60849]

Case: 15-60849

Document: 00513872704

Page: 1

Date Filed: 02/13/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60849

United States Court of Appeals
Fifth Circuit

FILED
February 13, 2017
Lyle W. Cayce
Clerk

CURTIS EVANS,
Plaintiff-Appellant
v.

MARSHALL FISHER, Commissioner, Mississippi Department of Corrections;
ROBERTS, Case Manager,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:15-CV-494
Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Curtis Chrishaun Evans, Mississippi prisoner # L-2500, sued certain
prison officials under 42 U.S.C. § 1983 for allegedly violating his due process
and equal protection rights. Evans complains that prison officials failed to
annually review his custodial classification and recommend that he be reclassified to medium-security status. The district court initially allowed Evans
to file suit in forma pauperis.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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The district court determined that Evans failed to state a claim for any
constitutional violation and that his claims were “frivolous” within the
meaning of 28 U.S.C. § 1915(e). A filing is “frivolous” if it “lacks an arguable
basis in law or fact or if there is no realistic chance of ultimate success.” See
Henthorn v. Swinson, 955 F.2d 351, 352 (5th Cir. 1992). The district court
warned Evans that its dismissal counts as a “strike” under the Prison
Litigation Reform Act. This was his third strike. See Evans v. Fisher, No.1560508, 2016 WL 5874836, at *2 (5th Cir. Oct. 7, 2016) (notifying Evans that he
had at least two strikes).
When Evans sought to appeal and proceed in forma pauperis, the district
court certified that Evans was not appealing in good faith. See § 1915(a)(3)
(“An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.”). In other words, the district court
determined that Evans’s appeal, like his complaint, was “frivolous.”

The

district court did not consider Evans’s ability to pay the costs of an appeal
because, as we have already explained to Evans, if his appeal is frivolous, it is
irrelevant whether he is unable to pay court costs.

See Evans, 2016 WL

5874836, at *1. “A claimant may appeal in forma pauperis only if he meets
three requirements,” including good faith or non-frivolousness. Id. (emphasis
added).
Evans now challenges the district court’s refusal to allow him to appeal
in forma pauperis. He argues that the district court’s decision was “wrong”
because “nothing has changed [with his] inmate account,” and he is not
receiving any more money than he had when he originally filed his complaint.
Again, because Evans fails to dispute the frivolousness of his appeal, his
inability to pay court costs is irrelevant. We therefore DENY his motion to

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proceed in forma pauperis and DISMISS his appeal as frivolous.

This

dismissal counts as Evans’s fourth strike under 28 U.S.C. § 1915(e).
The Prison Litigation Reform Act prohibits a prisoner who has pursued
three or more frivolous suits or appeals from suing or appealing again “unless
the prisoner is under imminent danger of serious physical injury.” Id. We now
BAR Evans from proceeding in forma pauperis in any civil action or appeal
while he is detained in any facility unless he is under imminent danger of
serious physical injury. We WARN Evans that any more frivolous, repetitive,
or otherwise abusive filings will result in sanctions, such as dismissal,
monetary fines, and restrictions on his ability to file pleadings in this court and
any court subject to our jurisdiction. We also WARN Evans to review any
pending suits or appeals he has already filed and move to dismiss those that
are frivolous.

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