Case: 14-10618 Document: 00513009388 Page: 1 Date Filed: 04/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10618
United States Court of Appeals
Fifth Circuit
FILED
TYRON ALAN MCGARRAH, April 17, 2015
Lyle W. Cayce
Plaintiff-Appellant Clerk
v.
BOB ALFORD; EDDIE WILLIAMS; JIMMY JOHNSON; RODNEY COOPER;
BRANDON WOOD,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-1125
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Tyron Alan McGarrah, Texas prisoner # 01936601, moves to proceed in
forma pauperis (IFP) in his appeal of the district court’s dismissal of his 42
U.S.C. § 1983 complaint, in which he alleged that he was denied access to a
law library and therefore was deprived of his constitutional right of access to
the courts. The district court dismissed McGarrah’s complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The district court also denied
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-10618 Document: 00513009388 Page: 2 Date Filed: 04/17/2015
No. 14-10618
McGarrah’s motion for leave to proceed IFP on appeal, certifying that the
appeal was frivolous and not taken in good faith.
By moving in this court for leave to proceed IFP, McGarrah is
challenging the district court’s certification decision. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). An appeal is taken in good faith if it raises legal
points that are arguable on the merits and thus nonfrivolous. Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Although McGarrah contends that he is
being denied access to legal research materials, he fails to address the district
court’s finding that “[s]ince Plaintiff is represented by counsel, he has failed to
state a claim for denial of access to the courts.” By failing to provide argument
that addresses the basis of the district court’s dismissal, McGarrah has failed
to adequately present any argument for this court’s consideration. He has thus
failed to establish that he will raise a nonfrivolous issue for appeal.
McGarrah’s appeal is without arguable merit and therefore is frivolous.
See Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is
dismissed. See 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous
counts as a strike under § 1915(g), as does the district court’s dismissal as
frivolous. See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Additionally, McGarrah accumulated two strikes in other proceedings
in which he filed § 1983 complaints that were dismissed by the district court
as frivolous. See McGarrah v. Williams, No. 3:14-CV-1119-M, 2014 WL
4696015, at *1 (N.D. Tex. Sept. 18, 2014) (unpublished); McGarrah v.
Kimbrow, No. 3:14-CV-2088-B-BK, 2015 WL 105228, at *1 (N.D. Tex. Jan. 6,
2015) (unpublished). Accordingly, McGarrah has accumulated more than
three strikes and is now barred from proceeding 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).
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Case: 14-10618 Document: 00513009388 Page: 3 Date Filed: 04/17/2015
No. 14-10618
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g)
BAR IMPOSED.
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