Jeremy Reese v. Stafeny Shearwood, et al


UNPUBLISHED OPINION ORDER FILED. [16-11352 Dismissed as Frivolous] Judge: PEH , Judge: EHJ , Judge: GJC Mandate pull date is 08/29/2017; denying motion to proceed IFP filed by Appellant Mr. Jeremy Dale Reese [8341203-2] [16-11352]

Download PDF
Case: 16-11352 Document: 00514106615 Page: 1 Date Filed: 08/08/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11352 United States Court of Appeals Fifth Circuit FILED August 8, 2017 JEREMY DALE REESE, also known as Monster, Lyle W. Cayce Clerk Plaintiff-Appellant v. STAFENY SHEARWOOD, Head Nurse, Tom Green County Jail, Individual and Official Capacity; THOMAS FREEDEN, Doctor, Center for Disease Control and Prevention, Individual and Official Capacity; SANDRA LNU, Case Manager, Individual and Official Capacity; SHANNON MEDICAL CENTER; ZACH O'NEAL, Physician Assistant, Individual and Official Capacity; LA ESPERANZA CLINIC; ANTHONY MIKESH, Texas Commission, Individual and Official Capacity; RAFAEL HURTADO, Lab, Tom Green County Jail, Individual and Official Capacity; FNU BRIONES, Deputy, Individual and Official Capacity; DALE PEARCE, Chief Deputy, Individual and Official Capacity; TODD ALLEN, Captain, Individual and Official Capacity; AMY WRIGHT, Lieutenant, Individual and Official Capacity, Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 6:16-CV-8 Case: 16-11352 Document: 00514106615 Page: 2 Date Filed: 08/08/2017 No. 16-11352 Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURIAM: * Jeremy Dale Reese moves for leave to proceed in forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to the three-strikes provision of 28 U.S.C. § 1915(g). A prisoner may not proceed IFP in a civil action or appeal a judgment in a civil action if he has, on three or more prior occasions, while incarcerated or detained in a facility, “brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” § 1915(g). 1 Reese does not dispute that he has three strikes but instead argues that the exception to the § 1915(g) bar should apply because he is under imminent danger of a serious physical injury. In support of this contention, he alleges unpleasant symptoms and speculates that he has an undiagnosed contagious disease, although his submissions establish that he has received medical examination and treatment. On this record, Reese has failed to demonstrate that he was under imminent danger of serious physical injury at the time that he filed his complaint in the district court, proceeded with his appeal, or moved to proceed IFP. See id.; Baños, 144 F.3d at 884-85; Arvie v. Tanner, 518 F. App’x 304, 305 (5th Cir. 2013). His motion is therefore denied. 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. * Reese’s release from incarceration while his IFP motion was pending does not relieve him from the requirements of § 1915(g). See Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998); see also Torns v. Miss. Dep’t of Corr., 421 F. App’x 316, 317 (5th Cir. 2010). His release also does not moot his § 1983 claim for damages. See Cruz v. Estelle, 497 F.2d 496, 499 (5th Cir. 1974) 1 2 Case: 16-11352 Document: 00514106615 Page: 3 Date Filed: 08/08/2017 No. 16-11352 The facts surrounding the IFP decision are inextricably intertwined with the merits of Reese’s appeal. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). The appeal presents no nonfrivolous issues and is dismissed as frivolous. See 5TH CIR. R. 42.2. IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS. 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?