Levonzel Anderson v. Norris Morris

Case: 17-60754 Document: 00514852937 Page: 1 Date Filed: 02/27/2019

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-60754 FILED
February 27, 2019
Lyle W. Cayce
Clerk
LEVONZEL ANDERSON,

Plaintiff−Appellant,

versus

NORRIS MORRIS, Sued in His Official and Individual Capacity; STEVEN
PICKETT, Sued in His Official and Individual Capacity; CLARNCE BROWN,
Sued in His Official and Individual Capacity; KAY WASHINGTON, Sued in
His Official and Individual Capacity; EARNEST LEE, Sued in His Official
Capacity; TIMOTHY MORRIS, Sued in His Official and Individual Capacity;
UNKNOWN STURDIVANT, Sued in Her Official Capacity; ANDREW
MILLS, Sued in His Official Capacity; UNKNOWN COX, Sued in Her Official
Capacity; KATHRYN MCINTYRE, Sued in Her Official and Individual
Capacity; RICHARD PENNINGTON, Sued in His Official Capacity;
UNKNOWN BROWN, Sued in His Official and Individual Capacity; RICKY
SCOTT, Sued in His Official and Individual Capacity; NOLA NELSON, Sued
in Her Official and Individual Capacity; JOHN DOE #1, Sued in His Official
and Individual Capacity; UNKNOWN MCCOY, Sued in His Official and
Individual Capacity; UNKNOWN BURT, Sued in His Official and Individual
Capacity; M.D. CHARLES HALL, Sued in His Official Capacity; TIMOTHY
OUTLAW, Sued in His Official and Individual Capacity; UNKNOWN
GARRISON, Sued in His Official and Individual Capacity; UNKNOWN
VANCE, Sued in His Official and Individual Capacity; JOHN DOE #2, Sued
in His Official and Individual Capacity; PAMLA ROBINSON, Sued in Her
Official Capacity; UNKNOWN JOHNSON, Sued in Her Official and
Individual Capacity; UNKNOWN MUMFORD, Sued in His Official and
Individual Capacity; UNKNOWN ALEXANDER, Sued in His Official and
Individual Capacity; UNKNOWN MEET/MEEKS, Sued in Her Official and
Individual Capacity; MARSHALL FISHER, Sued in His Official Capacity,

Defendants−Appellees.
Case: 17-60754 Document: 00514852937 Page: 2 Date Filed: 02/27/2019

No. 17-60754

Appeal from the United States District Court
for the Northern District of Mississippi
No. 4:16-CV-101

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *

Levonzel Anderson, Mississippi prisoner #56485, moves to proceed in
forma pauperis (“IFP”) on appeal. The district court granted the defendants’
summary judgment motions as to Anderson’s 42 U.S.C. § 1983 claims of failure
to protect, retaliation, and denial of access to courts and dismissed the remain-
ing claims, including that Anderson was unconstitutionally denied parole, per
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could
be granted. Anderson’s IFP motion is a challenge to the district court’s certifi-
cation that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).

In his IFP motion, Anderson reasserts claims of failure to protect, retal-
iation, denial of access to courts, and denial of parole. Anderson’s remaining
claims have been abandoned. See Brinkmann v. Dallas Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Anderson’s transfer to the Wilkinson
County Correctional Facility renders any claims for injunctive relief at the
Marshall County Correctional Facility and the Mississippi Department of
Corrections Hospital moot. See Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir.

* 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.

2
Case: 17-60754 Document: 00514852937 Page: 3 Date Filed: 02/27/2019

No. 17-60754

1988). Moreover, we do not consider any facts that were not before the district
court at the time of final judgment. See Theriot v. Par. of Jefferson, 185 F.3d
477, 491 n.26 (5th Cir. 1999).

Anderson has not shown that he will present a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
the motion to proceed IFP is DENIED, and the appeal is DISMISSED as frivo-
lous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

The dismissal as frivolous counts as a strike under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387−88 (5th Cir. 1996). Anderson is
warned that if he accumulates three strikes under § 1915(g), he will be 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 physi-
cal injury. See § 1915(g).