Daniel Gruenfelder v. April Smith , 581 F. App'x 431 ( 2014 )

Case: 14-10204 Document: 00512760694 Page: 1 Date Filed: 09/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10204 FILED
September 8, 2014
Lyle W. Cayce
DANIEL GRUENFELDER,
Clerk
Plaintiff-Appellant
v.
APRIL SMITH, Court Investigator, Dallas County Courts; SUSAN HAWK,
291st District Judge, Dallas County Courts; CRAIG WATKINS, District
Attorney,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-2399
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Daniel Gruenfelder, Texas prisoner # 1076538, moves for authorization
to proceed in forma pauperis (IFP) in his appeal of the district court’s dismissal
of his 42 U.S.C. § 1983 complaint as frivolous. His IFP motion is construed as
a challenge to the district court’s certification determination that his appeal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10204 Document: 00512760694 Page: 2 Date Filed: 09/08/2014
No. 14-10204
was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
Gruenfelder does not address the district court’s reasons for its
certification decision in his IFP motion or brief. Rather, his IFP motion and
supporting brief address only his financial eligibility for IFP status. Thus, he
has abandoned any challenge to the district court’s certification decision, see
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987), and 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, because he has failed to show that the appeal has merit, his
appeal is dismissed as frivolous. See Howard, 707 F.2d at 219-220; 5TH CIR.
R. 42.2.
The district court’s dismissal of Gruenfelder’s § 1983 complaint as
frivolous 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, 387-88 (5th Cir. 1996). Gruenfelder is cautioned that if he
accumulates three strikes, he will not be able to proceed IFP in any civil action
or appeal while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
IT IS ORDERED that Gruenfelder’s motion to proceed IFP is DENIED,
and the appeal is DISMISSED as frivolous.
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