Hubert Warren v. Ellis County, Texas

Case: 12-20719 Document: 00512242733 Page: 1 Date Filed: 05/15/2013

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

FILED
May 15, 2013
No. 12-20719
Summary Calendar Lyle W. Cayce
Clerk

HUBERT WARREN, JR.,

Plaintiff-Appellant

v.

ELLIS COUNTY, TEXAS; DON MAXFIELD;
JOE GRUBB; GENE KNIZE,

Defendants-Appellees

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-2674

Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Hubert Warren, Texas prisoner # 1023303, has filed a motion to proceed
in forma pauperis (IFP) on appeal following the district court’s dismissal of his
42 U.S.C. § 1983 lawsuit for failure to pay outstanding monetary sanctions and
its denial of IFP. A litigant may not proceed IFP on appeal unless he
demonstrates financial eligibility and the existence of a nonfrivolous issue for
appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20719 Document: 00512242733 Page: 2 Date Filed: 05/15/2013

No. 12-20719

The district court determined that Warren was barred from proceeding
IFP in his civil rights action because he had accumulated three strikes under
28 U.S.C. § 1915(g). Warren does not dispute that he has three strikes but
argues that the § 1915(g) bar should not apply because he is under imminent
danger of serious physical injury, citing the fact that he has been exposed to dust
lint and shower odor through his cell vent, which has caused him headaches,
voice changes, and watery eyes. He also alleges that he is under constant stress
resulting from the denial of his constitutional rights, subjecting him to a
potential risk of, among other things, hypertension, heart and immune system
problems, fatigue, depression, and weight gain, all of which could shorten his life
expectancy.
Warren’s assertions regarding his cell conditions and the possibility of
future medical problems resulting from stress do not show that he faced an
imminent danger of serious physical injury at the relevant time. See Banos v.
O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). Consequently, he has not shown that
he is entitled to proceed IFP on the ground that he is under imminent danger of
serious physical injury. See § 1915(g). Moreover, Warren briefs no argument
regarding his unpaid sanctions, does not present proof of payment, and does not
otherwise explain why he should be permitted to proceed without payment of the
outstanding sanctions. He has thus failed to show that he has a nonfrivolous
issue for appeal. See Carson, 689 F.2d at 586. Accordingly, the IFP motion is
DENIED, and the appeal is DISMISSED. See id.; 5TH CIR. R. 42.2.

2