Graves v. Hartley

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 11, 2023
• Docket: 22-50430
• Status: Unpublished

Opinion

Case: 22-50430 Document: 00516606949 Page: 1 Date Filed: 01/11/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-50430 FILED January 11, 2023 ____________ Lyle W. Cayce Scott Graves, Clerk

Plaintiff—Appellant,

versus

Brittany Hartley, Sergeant of Corrections for Alfred D. Hughes Unit,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 6:22-CV-465 ______________________________

Before Haynes, Engelhardt, and Oldham, Circuit Judges. Per Curiam: * Scott Graves, Texas prisoner # 2023036, moves to appeal in forma pauperis (IFP) from the dismissal of his civil rights complaint brought under 42 U.S.C. § 1983. The district court concluded that Graves was barred from proceeding IFP because he had three strikes under 28 U.S.C. § 1915(g) and had not established that he was under imminent danger of serious physical injury.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50430 Document: 00516606949 Page: 2 Date Filed: 01/11/2023

No. 22-50430

The conclusory and uncorroborated allegations in Graves’s pleadings are insufficient to make the showing required to avoid application of the three strikes bar under § 1915(g). See Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998). Accordingly, his motion for leave to proceed IFP on appeal is denied. Because the facts surrounding the IFP decision are inextricably intertwined with the merits of the issue on appeal, his appeal is dismissed as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5th Cir. R. 42.2. Graves is warned that he is barred under § 1915(g) from proceeding IFP in any civil action or appeal filed in a court of the United States while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. Any pending or future frivolous or repetitive filings in this court or any court subject to this court’s jurisdiction may subject him to additional sanctions, including monetary sanctions and limits on his access to this court and any court subject to this court’s jurisdiction. MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.