TURNER v. DAVIS FNU FNU FNU FNU FNU (2018)

John N. Turner, Texas prisoner # 713796, moves for leave to proceed in forma pauperis (IFP) in this appeal from the dismissal of his 42 U.S.C. § 1983 action against the defendants. Turner's IFP motion in this court constitutes a challenge to the district court's certification that the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The district court stated that a notice of appeal was placed in the prison mail system on or about September 25, 2016, which would constitute a timely filing, but neither the district court's order nor the record as a whole makes clear that the notice was addressed to the correct court. See Houston v. Lack, 487 U.S. 266, 272-73, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); see also Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). We pretermit that question, see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000), because Turner does not show that the § 1983 complaint or any other claim in this case has arguable merit, see Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Therefore, we DENY the IFP motion and sua sponte DISMISS this frivolous suit. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220; 5th Cir. R. 42.2.

The dismissal of the complaint by the district court and the dismissal of this appeal as frivolous constitute two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Turner is WARNED that accumulating a third strike will preclude him from proceeding IFP in any civil action or appeal while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS; IFP MOTION DENIED; SANCTION WARNING ISSUED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.