Donald Howard v. David Langston , 544 F. App'x 427 ( 2013 )

Case: 12-41035 Document: 00512250754 Page: 1 Date Filed: 05/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 22, 2013
No. 12-41035
Summary Calendar Lyle W. Cayce
Clerk
DONALD R. HOWARD,
Plaintiff–Appellant,
v.
DAVID LANGSTON; GARY WRIGHT; VIRGINIA SCHAFER; TARA PATTON;
LORI FORTNER; ET AL,
Defendants–Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:12-CV-250
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Donald R. Howard, Texas prisoner # 1397355, moves for appointment of
counsel and leave to proceed in forma pauperis (IFP) on appeal from the
dismissal of his 42 U.S.C. § 1983 complaint. In his complaint, Howard alleged
that the defendants engaged in a wide-ranging conspiracy to kill him on behalf
of the Ku Klux Klan. The parties consented to allow the magistrate judge (MJ)
to adjudicate the case, and the MJ dismissed Howard’s complaint pursuant to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41035 Document: 00512250754 Page: 2 Date Filed: 05/22/2013
No. 12-41035
28 U.S.C. § 1915A(b)(1) on the ground that it was frivolous and failed to state a
claim upon which relief may be granted. The MJ denied Howard’s subsequent
motion to proceed IFP on appeal and certified that his appeal was not taken in
good faith.
By moving to proceed IFP here, Howard is challenging the MJ’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
He reiterates his factual allegations of a conspiracy and contends that the MJ
erred by improperly making a credibility determination regarding the disputed
material facts in his complaint. A court may dismiss a claim as factually
frivolous where the facts alleged are “clearly baseless,” such as when the
allegations are fanciful, fantastic, or delusional. Denton v. Hernandez, 504 U.S.
25, 32-33 (1992). Howard’s conclusory brief does not show that the MJ erred in
certifying that his appeal was not taken in good faith. See id.; Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983) (per curiam). The instant appeal is without
arguable merit and is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24;
Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2.
Howard filed a prior civil suit that was dismissed by the district court
under § 1915A(b)(1) as frivolous and for failure to state a claim, a decision from
which he did not appeal. Howard v. Crenshaw, No. 4:08-CV-3751 (S.D. Tex. Dec.
30, 2008). That prior dismissal counts as one strike under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Based on the MJ’s
dismissal of his instant complaint and our dismissal of this appeal as frivolous,
Howard has accumulated two additional strikes, for a total of three strikes under
§ 1915(g). See Adepegba, 103 F.3d at 388. Thus, Howard 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
§ 1915(g).
Additionally, we warn Howard that frivolous, repetitive, or otherwise
abusive filings will invite the imposition of sanctions, including dismissal,
2
Case: 12-41035 Document: 00512250754 Page: 3 Date Filed: 05/22/2013
No. 12-41035
monetary sanctions, and/or restrictions on his ability to file pleadings in this
court and any court subject to this court’s jurisdiction. Howard is further
warned that he should review any pending appeals and actions and move to
dismiss any that are frivolous.
APPEAL DISMISSED; MOTIONS FOR LEAVE TO PROCEED IFP AND
APPOINTMENT OF COUNSEL DENIED; 28 U.S.C. § 1915(g) BAR IMPOSED;
SANCTION WARNING ISSUED.
3