Gary v. Pace , 209 F. App'x 428 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-11008
Conference Calendar
JOHN ART GARY,
Plaintiff-Appellant,
versus
DARREN PACE; CLARENCE GRAY JOHNSON; RANDON GRAY;
SANDRA HICKS; BRUCE JONES; RENEE PERRY; JADA ANAE
BRODY; S.W. GRIFFIS; TOMMY RALEY; RUSS UNDERWOOD;
BRIAN CORRIGAN; RACHEL JONES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-202
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Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
John Art Gary, Texas state prisoner # 1282741, moves this
court for leave to appeal in forma pauperis (IFP) following the
district court’s dismissal of his civil rights complaint as
frivolous under 28 U.S.C. § 1915(e)(2)(B). Gary’s motion for IFP
is construed as a challenge to the district court’s determination
that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
*
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this opinion should not be published and is not precedent except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. 05-11008
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whether the appeal is taken in good faith “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) (citation omitted).
Gary brought suit against several employees of a McDonald’s
restaurant, alleging that he wrongfully was shot in the leg by
one of the employees after he began a robbery of the restaurant
but “changed his mind.” Gary also named as defendants several
law-enforcement agents; however, he does not appeal from the
district court’s dismissal of his claims against those
defendants.
Even were this court to accept Gary’s assertion that he
submitted evidence sufficient to support his claim that the
McDonald’s defendants conspired with state actors to protect the
employee who shot him from criminal liability, Gary had no
federal constitutional right to have the employee criminally
prosecuted. See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.
1990). Gary thus fails to state a cause of action under
42 U.S.C. § 1983. See Woods v. Edwards, 51 F.3d 577, 583 (5th
Cir. 1995). The motion for IFP is denied and the appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH
CIR. R. 42.2.
Gary previously filed a civil rights complaint that was
dismissed as frivolous. See Gary v. Collins, 6:91cv530 (E.D.
Tex. May 26, 1992). The dismissal of the instant appeal as
No. 05-11008
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frivolous counts as two strikes. See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Because he has accumulated
three strikes under § 1915(g), Gary 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 IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g)
BAR IMPOSED.