Michael Hurtado v. Trentin Farrell, et al
UNPUBLISHED OPINION ORDER FILED. [16-50039 Dismissed as Frivolous] Judge: PEH , Judge: JLD , Judge: JEG. Mandate pull date is 05/25/2017; denying motion to proceed IFP filed by Appellant Mr. Michael Hurtado [8230030-2] [16-50039]
Date Filed: 05/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 4, 2017
Lyle W. Cayce
HONORABLE JUDGE TRENTIN D. FARRELL; STATE ATTORNEY CATHY
FERGUSON; ATTORNEY JEFFERY D. PARKER; HONORABLE JUDGE
SHARON MACRAE; DISTRICT ATTORNEY JOHN CHARLES BUNK;
ATTORNEY STEPHEN NICHOLAS,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-932
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Michael Hurtado, Texas prisoner # 1445905, moves for leave to proceed
in forma pauperis (IFP) in an appeal of the district court’s dismissal of his 42
U.S.C. § 1983 complaint. His IFP motion is a challenge to the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 05/04/2017
In his § 1983 complaint, Hurtado alleged that the trial court judge,
district attorney, and his defense counsel obstructed justice and engaged in
misconduct in various ways related to his indictment and prosecution. We
agree that Hurtado has not shown that he will present a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
we deny his motion for leave to proceed IFP and dismiss the appeal as frivolous.
See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of Hurtado’s complaint and this court’s
dismissal of his appeal each count as a strike under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Hurtado also
received two strikes in another recent appeal (No. 16-10453). Because he has
accumulated at least three strikes under § 1915(g), Hurtado is barred from
proceeding 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).
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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