Case: 20-50725 Document: 00515961666 Page: 1 Date Filed: 08/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 2, 2021
No. 20-50725
Lyle W. Cayce
Clerk
John Richard Smith,
Plaintiff—Appellant,
versus
Doctor Douglas Green; Warden Bruce Armstrong;
Valencia Pollard, Practice Manager, Alfred D. Hughes; Nurse
FNU Laurence; Nurse FNU Whitt, also known as Laurence
Whitt; Nurse J. Marcum, also known as Jennifer Marcum;
Nurse T. Smith, also known as Teri Smith,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:17-CV-144
Before Stewart, Haynes, and Ho, Circuit Judges.
Per Curiam:*
John Richard Smith, Texas prisoner # 2037971, has moved for leave
to proceed in forma pauperis (IFP) in this appeal from the dismissal of his
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50725 Document: 00515961666 Page: 2 Date Filed: 08/02/2021
No. 20-50725
motion under Federal Rule of Civil Procedure 60(b) for relief from the
district court’s judgment dismissing his civil rights action.
Smith’s motion to proceed IFP is construed as a challenge to the
district court’s certification decision that his appeal is not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry
into whether an appeal is taken in good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citations omitted).
Smith has failed to show that he has a nonfrivolous argument that the
district court abused its discretion in dismissing his Rule 60(b) motion. See
Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010). The motion for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED AS
FRIVOLOUS. See 5th Cir. R. 42.2; Baugh, 117 F.3d at 202 n.24.
This dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996), abrogated in part
on other grounds by Coleman v. Tollefson, 575 U.S. 532, 537 (2015).
Additionally, a dismissal, under § 1915(e), by the district court in another
case counts as a strike. Smith is WARNED that if he accumulates a third
strike, he may not proceed IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is in imminent danger of
serious physical injury. See § 1915(g).
2