Jeremy Reese v. Stafeny Shearwood

Fifth Circuit

Jeremy Reese v. Stafeny Shearwood

694 F. App'x 345

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 8, 2017

Docket16-11352

StatusUnpublished

This text of 694 F. App'x 345 (Jeremy Reese v. Stafeny Shearwood) 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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Jeremy Reese v. Stafeny Shearwood, 694 F. App'x 345 (5th Cir. 2017).

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Opinion

PER CURIAM: *

Jeremy Dale Reese moves for leave to proceed in forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to the three-strikes provision of 28 U.S.C. § 1915(g). A prisoner may not proceed IFP in a civil action or appeal a judgment in a civil action if he has, on three or more prior occasions, while incarcerated or detained in a facility, “brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury,” § 1915(g). 1

Reese does not dispute that he has three strikes but instead argues that the exception to the § 1915(g) bar should apply because he is under imminent danger of a serious physical injury. In support of this contention, he alleges unpleasant symptoms and speculates that he has an undiagnosed contagious disease, although his submissions establish that he has received medical examination and treatment. On this record, Reese has failed to demonstrate that he was under imminent danger of serious physical injury at the time that he filed his complaint in the district court, proceeded with his appeal, or moved to proceed IFP. See id.; Baños, 144 F.3d at 884-85; Arvie v. Tanner, 518 Fed.Appx. 304, 305 (5th Cir. 2013). His motion is therefore denied.

The facts surrounding the IFP decision are inextricably intertwined with the merits of Reese’s appeal. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). The appeal presents no nonfrivolous issues and is dismissed as frivolous. See 5th Cir. R. 42.2.

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.

*

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.

1

. Reese's release from incarceration while his IFP motion was pending does not relieve him from the requirements of § 1915(g). See Baños v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998); see also Torns v. Miss. Dep'f of Corr., 421 Fed.Appx. 316, 317 (5th Cir. 2010). His release also does not moot his § 1983 claim for damages. See Cruz v. Estelle, 497 F.2d 496, 499 (5th Cir. 1974)

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PER CURIAM: *

Jeremy Dale Reese moves for leave to proceed in forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to the three-strikes provision of 28 U.S.C. § 1915(g). A prisoner may not proceed IFP in a civil action or appeal a judgment in a civil action if he has, on three or more prior occasions, while incarcerated or detained in a facility, “brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury,” § 1915(g). 1

Reese does not dispute that he has three strikes but instead argues that the exception to the § 1915(g) bar should apply because he is under imminent danger of a serious physical injury. In support of this contention, he alleges unpleasant symptoms and speculates that he has an undiagnosed contagious disease, although his submissions establish that he has received medical examination and treatment. On this record, Reese has failed to demonstrate that he was under imminent danger of serious physical injury at the time that he filed his complaint in the district court, proceeded with his appeal, or moved to proceed IFP. See id.; Baños, 144 F.3d at 884-85; Arvie v. Tanner, 518 Fed.Appx. 304, 305 (5th Cir. 2013). His motion is therefore denied.

The facts surrounding the IFP decision are inextricably intertwined with the merits of Reese’s appeal. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). The appeal presents no nonfrivolous issues and is dismissed as frivolous. See 5th Cir. R. 42.2.

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.

*

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.

1

. Reese's release from incarceration while his IFP motion was pending does not relieve him from the requirements of § 1915(g). See Baños v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998); see also Torns v. Miss. Dep'f of Corr., 421 Fed.Appx. 316, 317 (5th Cir. 2010). His release also does not moot his § 1983 claim for damages. See Cruz v. Estelle, 497 F.2d 496, 499 (5th Cir. 1974)

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694 F. App'x 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeremy-reese-v-stafeny-shearwood-ca5-2017.

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