McGrew v. Louisiana State Penitentiary Mental Health Department

Fifth Circuit

McGrew v. Louisiana State Penitentiary Mental Health Department

459 F. App'x 370

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 24, 2012

Docket16-60315

StatusUnpublished

Cited by4 cases

This text of 459 F. App'x 370 (McGrew v. Louisiana State Penitentiary Mental Health Department) 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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McGrew v. Louisiana State Penitentiary Mental Health Department, 459 F. App'x 370 (5th Cir. 2012).

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Opinion

PER CURIAM: *

Carlos A. McGrew, Texas prisoner # 413135, moves for leave to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his action without prejudice for failing to pay the court’s filing fee. McGrew’s motion for leave to proceed IFP in the district court was denied pursuant to 28 U.S.C. § 1915(g) on the grounds that McGrew had, on more than three prior occasions, while incarcerated, brought an action in federal court that was dismissed as frivolous or for failure to state a claim, and McGrew’s claims did not reflect that McGrew was under “imminent danger of serious physical injury.” § 1915(g). In McGrew’s motion for IFP filed in this court, he argues that at the time he filed his complaint in the district court, he was under “imminent danger of serious physical injury” due to (1) exposure to extreme heat and harsh living conditions at the prison, and (2) deprivation of adequate mental health care, specifically, the withholding of medication to combat the side effects of Risperdal, one of his prescribed medications.

The determination whether a prisoner is under “imminent danger” must be made at the time the prisoner seeks to file his suit in district court, when he files his notice of appeal, or when he moves for IFP status. Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.1998). Thus, in this case, we analyze whether McGrew was under imminent danger at the time that he filed his appellate IFP motion. See id. McGrew does not assert, much less establish, that he was under imminent danger of serious physical injury when he filed his appellate IFP motion. See Baños, 144 F.3d at 884-85.

IT IS ORDERED that McGrew’s motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED. The appeal may be reinstated if McGrew pays the appellate filing fee within 30 days of this dismissal.

*

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: *

Carlos A. McGrew, Texas prisoner # 413135, moves for leave to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his action without prejudice for failing to pay the court’s filing fee. McGrew’s motion for leave to proceed IFP in the district court was denied pursuant to 28 U.S.C. § 1915(g) on the grounds that McGrew had, on more than three prior occasions, while incarcerated, brought an action in federal court that was dismissed as frivolous or for failure to state a claim, and McGrew’s claims did not reflect that McGrew was under “imminent danger of serious physical injury.” § 1915(g). In McGrew’s motion for IFP filed in this court, he argues that at the time he filed his complaint in the district court, he was under “imminent danger of serious physical injury” due to (1) exposure to extreme heat and harsh living conditions at the prison, and (2) deprivation of adequate mental health care, specifically, the withholding of medication to combat the side effects of Risperdal, one of his prescribed medications.

The determination whether a prisoner is under “imminent danger” must be made at the time the prisoner seeks to file his suit in district court, when he files his notice of appeal, or when he moves for IFP status. Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.1998). Thus, in this case, we analyze whether McGrew was under imminent danger at the time that he filed his appellate IFP motion. See id. McGrew does not assert, much less establish, that he was under imminent danger of serious physical injury when he filed his appellate IFP motion. See Baños, 144 F.3d at 884-85.

IT IS ORDERED that McGrew’s motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED. The appeal may be reinstated if McGrew pays the appellate filing fee within 30 days of this dismissal.

*

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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459 F. App'x 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrew-v-louisiana-state-penitentiary-mental-health-department-ca5-2012.

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