Perry v. Pack

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 20, 1999
• Docket: 98-50856
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50856 Conference Calendar

PRENTIS PERRY,

Plaintiff-Appellant, versus

ERNEST PACK, Correctional Officer III at Boyd Unit; KEVIN COOK, Correctional Officer III at Boyd Unit; MONTE CALAME, Sergeant at the Boyd Unit,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CV-336 - - - - - - - - - -

October 19, 1999

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Prentis Perry, Texas prisoner # 506616, has filed a motion

for leave to proceed in forma pauperis (“IFP”) on appeal,

following the dismissal of his complaint for failure to state a

claim upon which relief may be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). By moving for IFP status, Perry is

challenging the district court’s certification that IFP status

should not be granted on appeal because his appeal presents no

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-50856 -2-

nonfrivolous issues and is not taken in good faith. See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

Perry argues that the district court failed to give its

reasons for denying his motion for leave to proceed IFP on

appeal. Perry also argues that the district court may not

dismiss his § 1983 action after requiring him to pay a partial

filing fee, relying on Grissom v. Scott, 934 F.2d 656, 657 (5th

Cir. 1991). The district court stated it was denying Perry’s IFP

motion because he had not identified a nonfrivolous issue for

appeal. Perry’s reliance on Grissom is misplaced as it was

decided prior to the enactment of the Prison Litigation Reform

Act (PLRA), and Perry’s action was filed after the April 26,

1996, effective date of the PLRA. Perry has not shown that he

will raise a nonfrivolous issue on appeal. Accordingly, we

uphold the district court’s order certifying that the appeal

presents no nonfrivolous issue. Perry’s request for IFP status

is DENIED, and his appeal is DISMISSED as frivolous. See Baugh,

117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

The district court’s dismissal of Perry’s § 1983 action

counts as a “strike” for purposes of 28 U.S.C. § 1915(g), and the

dismissal of this appeal as frivolous also counts as a “strike”

for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d

383, 385-87 (5th Cir. 1996). Perry is warned that if he

accumulates a third “strike” pursuant to § 1915(g), he 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). No. 98-50856 -3-

IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING

ISSUED.