Demond Cook v. Wade Lamotte

Fifth Circuit

Demond Cook v. Wade Lamotte

618 F. App'x 229

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 7, 2015

Docket15-30076

StatusUnpublished

This text of 618 F. App'x 229 (Demond Cook v. Wade Lamotte) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Demond Cook v. Wade Lamotte, 618 F. App'x 229 (5th Cir. 2015).

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PER CURIAM: *

Demond F. Cook, Louisiana prisoner # 367617, moves to proceed in forma pau-peris (IFP) in his appeal of the district court’s dismissal of his 42 U.S.C. § 1983 complaint. In the complaint, Cook alleged that Wade Lamotte, Leonard Harris, Johnathan Malveaux, Alfred Glasper, Don Williams, and Dennis Grimes violated his constitutional rights by using excessive force against him and then by exhibiting deliberate indifference to his serious medical needs arising from the use of force.

By moving to proceed IFP, Cook is challenging the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); 28 U.S.C. § 1915(a)(3). Cook contends that the district court erred in dismissing his § 1983 complaint as frivolous and malicious because it duplicated claims raised in two prior § 1983 complaints about the same incidents and against the same defendants. Because, as he admits, Cook seeks to relitigate for a third time the claims raised in his two prior § 1983 complaints, Cook’s appeal fails to involve a legal point arguable on its merits. See § 1915(e); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988); Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983).

The dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does the district court’s dismissal as frivolous and malicious. See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Cook also has one prior strike. See Cook v. Lamont, 537 Fed.Appx. 568, 569 (5th Cir.2013). Accordingly, Cook has accumulated three strikes and is now 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).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IMPOSED.

*

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.

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PER CURIAM: *

Demond F. Cook, Louisiana prisoner # 367617, moves to proceed in forma pau-peris (IFP) in his appeal of the district court’s dismissal of his 42 U.S.C. § 1983 complaint. In the complaint, Cook alleged that Wade Lamotte, Leonard Harris, Johnathan Malveaux, Alfred Glasper, Don Williams, and Dennis Grimes violated his constitutional rights by using excessive force against him and then by exhibiting deliberate indifference to his serious medical needs arising from the use of force.

By moving to proceed IFP, Cook is challenging the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); 28 U.S.C. § 1915(a)(3). Cook contends that the district court erred in dismissing his § 1983 complaint as frivolous and malicious because it duplicated claims raised in two prior § 1983 complaints about the same incidents and against the same defendants. Because, as he admits, Cook seeks to relitigate for a third time the claims raised in his two prior § 1983 complaints, Cook’s appeal fails to involve a legal point arguable on its merits. See § 1915(e); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988); Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983).

The dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does the district court’s dismissal as frivolous and malicious. See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Cook also has one prior strike. See Cook v. Lamont, 537 Fed.Appx. 568, 569 (5th Cir.2013). Accordingly, Cook has accumulated three strikes and is now 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).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IMPOSED.

*

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.

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618 F. App'x 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demond-cook-v-wade-lamotte-ca5-2015.

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