Riley v. Towery , 176 F. App'x 557 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-30865
Summary Calendar
MILTON K. RILEY,
Plaintiff-Appellant,
versus
PAM TOWERY; WARDEN HUFF,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CV-399
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Milton Riley, Louisiana prisoner number 108262, filed the
instant 42 U.S.C. § 1983 suit to seek redress for alleged acts of
deliberate indifference to his serious medical needs in relation
to his job assignments. The district court dismissed his suit
and certified that his appeal was not taken in good faith. Riley
challenges the district court’s certification decision pursuant
to Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), and
*
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this opinion should not be published and is not precedent except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.
No. 05-30865
-2-
requests that this court grant him authorization to proceed IFP
on appeal.
Riley maintains that he is disabled and that the defendants
violated his constitutional rights by permitting him to be
assigned to field work. The record evidence refutes this
contention and supports the district court’s dismissal of Riley’s
suit. See Resident Council v. United States Dep’t of Hous. and
Urban Dev., 980 F.2d 1043, 1050 (5th Cir. 1993); Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Jackson v. Cain, 864
F.2d 1235, 1246 (5th Cir. 1989). The record evidence also
refutes Riley’s contention that the district court erred by
relying on the affidavits submitted by defendant Huff. Riley’s
contention that the district court erroneously dismissed his
claims against defendant Towery lacks merit. 28 U.S.C.
§ 1915(e)(2)(b).
Riley has failed to show that his appeal involves “legal
points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). Accordingly, his motion
for authorization to proceed IFP on appeal is DENIED, and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 &
n.24.
The dismissal of Riley’s appeal as frivolous by this court
counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Riley is
No. 05-30865
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cautioned that once he accumulates three strikes, he may not
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 28 U.S.C.
§ 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.