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David Smith-Garcia v. Harrison County ( 2019 )


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  •      Case: 18-60781      Document: 00515093284         Page: 1    Date Filed: 08/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60781                       August 27, 2019
Lyle W. Cayce
DAVID SMITH-GARCIA, also known as David G. Atwood, II,      Clerk
Plaintiff-Appellant
v.
HARRISON COUNTY; HARRISON COUNTY SHERIFF’S DEPARTMENT;
TROY PETERSON, Sheriff; UNKNOWN HUBBARD, Warden; QUALITY
CORRECTIONAL HEALTHCARE; UNKNOWN BATES, Doctor; UNKNOWN
SINGLETON, Nurse; UNKNOWN BYRD, Nurse; KIM UNKNOWN, Nurse;
MADISON COUNTY; MADISON COUNTY SHERIFF’S DEPARTMENT;
RANDALL TUCKER, Sheriff; CHUCK MCNEIL, Major; UNKNOWN
DOCTOR, at Madison County; UNKNOWN COULTER, Doctor; UNKNOWN
DOCTOR, at Harrison County,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:17-CV-332
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
David Smith-Garcia, federal prisoner # 07954-043, formerly known as
David G. Atwood II, moves this court for authorization to proceed in forma
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-60781     Document: 00515093284      Page: 2   Date Filed: 08/27/2019
No. 18-60781
pauperis (IFP) in an appeal of the district court’s judgment dismissing his
    42 U.S.C. § 1983
     complaint pursuant to
    28 U.S.C. § 1915
    (e)(2)(A). Smith-Garcia
contends that the $6,705.59 he received from a prior false arrest lawsuit does
not qualify as “income” for purposes of an IFP application because it is tax
exempt under federal law. As such, he argues that he was not required to
disclose the $6,705.59 in his IFP application before the district court.
Alternatively, Smith-Garcia asserts that he was not required to disclose a
portion of the $6,705.59 in his IFP application because it represented
reimbursement for income earned six years prior to the filing of his complaint.
He states that he did properly report a portion of the $6,705.59 as income
received in February and March of 2017 on his IFP application.
“The federal [IFP] statute, codified at
    28 U.S.C. § 1915
    , allows an
indigent litigant to commence a civil or criminal action in federal court without
paying the administrative costs of proceeding with the lawsuit.” Denton v.
Hernandez,
    504 U.S. 25
    , 27 (1992). A litigant seeking IFP status must submit
an affidavit identifying all assets he possesses, as well as a statement that he
is unable to pay the necessary fees of bringing a federal civil action. See
§ 1915(a)(1). However, if a district court finds at any time that “the allegation
of poverty is untrue,” the IFP statute provides that it must dismiss the case,
“[n]otwithstanding any filing fee, or any portion thereof, that may have been
paid.” § 1915(e)(2)(A); see also Nottingham v. Warden, Bill Clements Unit,
    837 F.3d 438
    , 441 (5th Cir. 2016). In the instant case, the district court did not
abuse its discretion in dismissing Smith-Garcia’s complaint pursuant to
§ 1915(e)(2)(A) in light of his failure to disclose the income he received from his
prior false arrest lawsuit within the applicable timeframe. See Nottingham,
837 F.3d at 441; Lay v. Justices-Middle Dist. Court,
    811 F.2d 285
    , 285-86 (5th
Cir. 1987).
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Case: 18-60781    Document: 00515093284     Page: 3   Date Filed: 08/27/2019
No. 18-60781
Smith-Garcia’s appeal is without arguable merit and is thus frivolous.
See Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983). His IFP motion is
therefore denied, and his appeal is dismissed as frivolous. See Baugh v. Taylor,
    117 F.3d 197
    , 202 & n.24 (5th Cir. 1997); 5TH CIR. R. 42.2. Smith-Garcia has
previously accumulated two strikes under § 1915(g). See Atwood v. Lyons, 628
F. App’x 313, 314 (5th Cir. 2016); see also Adepegba v. Hammons,
    103 F.3d 383
    ,
387 (5th Cir. 1996). The instant dismissal also counts as a strike under
§ 1915(g). See Adepegba, 103 F.3d at 387. Accordingly, Smith-Garcia is barred
from proceeding in any civil action or appeal while incarcerated or detained in
any facility unless he is in imminent danger of serious physical injury. See
§ 1915(g).
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-
STRIKES SANCTION IMPOSED.
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