Case: 14-50472 Document: 00513446011 Page: 1 Date Filed: 03/31/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50472 FILED
March 31, 2016
Lyle W. Cayce
ROBERT KRAMER, Clerk
Plaintiff-Appellant
v.
CORRECTIONAL OFFICER A. CASTANEDA; RUBEN SANCHEZ, John Doe
#1; IMER COLLINS, Jane Doe #1-Property Officer; C. LAWSON, Regional
Grievance; GORGE MOTA, John Doe #2,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:13-CV-20
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Robert Kramer, Texas prisoner # 643733, moves for the appointment of
counsel and for leave to proceed in forma pauperis (IFP) on appeal from the
dismissal of his 42 U.S.C. § 1983 action as frivolous. By moving to proceed
IFP, Kramer challenges the district court’s certification that his appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50472 Document: 00513446011 Page: 2 Date Filed: 03/31/2016
No. 14-50472
To proceed IFP, a litigant must be economically eligible, and the appeal
must be taken in good faith. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
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). Kramer has not shown that his appeal has arguable merit. See id.
Accordingly, his motion for leave to proceed IFP is denied, and the 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 Kramer’s action as frivolous and our
dismissal count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Kramer has previously
accumulated two other strikes. See Kramer v. Hanley, No. 1:07-cv-00112 (W.D.
Tex. June 21, 2007); Kramer v. Bisco, No. 6:09-cv-36 (S.D. Tex. Aug. 15, 2011).
Kramer is, therefore, 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).
Finally, Kramer has not shown “exceptional circumstances” warranting
the appointment of counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982). Accordingly, we deny his motion for the appointment of counsel.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION BAR
IMPOSED.
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