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 2022-09

Witcher v. LaSalle Corrections ( 2022 )


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  • Case: 22-40259     Document: 00516482098         Page: 1     Date Filed: 09/23/2022
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
September 23, 2022
No. 22-40259                          Lyle W. Cayce
Summary Calendar                             Clerk
Demontrous Witcher,
Plaintiff—Appellant,
versus
LaSalle Corrections; FNU Jones, Captain, LaSalle Corrections;
John Doe, Security Officer, LaSalle Corrections; John Doe, Nurse,
LaSalle Corrections,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:20-CV-186
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Demontrous Witcher, Texas prisoner #02197222, seeks leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his
    42 U.S.C. § 1983
     complaint. Witcher consented to proceed before a magistrate
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-40259      Document: 00516482098          Page: 2    Date Filed: 09/23/2022
No. 22-40259
judge, who determined that the claims were time barred and dismissed the
case as frivolous and for failure to state a claim upon which relief may be
granted. The district court denied Witcher leave to proceed IFP on appeal.
By moving in this court to proceed IFP, Witcher is challenging the
district court’s certification that the appeal is not taken in good faith. See
Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). In reviewing the district
court’s decision, our inquiry “is limited to whether the appeal involves legal
points arguable on their merits (and therefore not frivolous).” Howard v.
King,
    707 F.2d 215
    , 220 (5th Cir. 1983). A complaint is frivolous where the
claims asserted are time-barred. Moore v. McDonald,
    30 F.3d 616
    , 620 (5th
Cir. 1994).
Witcher’s appeal is without arguable merit and is thus frivolous.
Howard,
    707 F.2d at 220
    . Because the appeal is frivolous, it is dismissed, and
the motion to proceed IFP is denied. See 5th Cir. R. 42.2; Baugh,
    117 F.3d at 
    202 & n.24. The district court’s dismissal of Witcher’s § 1983 complaint
and this court’s dismissal of his appeal as frivolous both count as strikes for
purposes of
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    , 388
(5th Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson,
    575 U.S. 532
    , 537-40 (2015). Witcher is warned that if he accumulates three
strikes, he will not be able to 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 § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED.
2