Bryant v. Epps

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-61132
Summary Calendar September 19, 2007

Charles R. Fulbruge III
Clerk
ADOLPH BRYANT, JR

Plaintiff-Appellant

v.

CHRISTOPHER EPPS, Commissioner, Mississippi Department of Corrections;
JANE T BOND, Records Department Director, Mississippi Department of
Corrections

Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-66

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Adolph Bryant, Jr., Mississippi prisoner # 84075, was convicted in 1993
of possession of marijuana and cocaine with intent to deliver arising out of two
drug arrests. He filed a 42 U.S.C. § 1983 suit challenging the computation of his
discharge and parole eligibility dates. The district court granted a motion for
summary judgment in favor of the defendants, dismissed Bryant’s suit as

*
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should not be published and is not precedent except under the limited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.
 No. 06-61132

frivolous, and denied Bryant leave to proceed in forma pauperis (IFP) on appeal,
certifying that the appeal was not taken in good faith. Bryant seeks leave from
this court to proceed IFP. By doing so, he challenges the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 203 (5th Cir. 1997).
Bryant has failed to demonstrate the existence of a nonfrivolous issue for
appeal. Although Bryant may be unable to afford the filing fee, he must
nevertheless raise a nonfrivolous issue. See id. He has not shown any
constitutional violations regarding his claims related to his discharge and parole
dates. He likewise has not shown that the district court abused its discretion in
allowing the respondent’s untimely summary judgment motion. See, e.g., Enlow
v. Tishomongo County, Miss., 962 F.2d 501, 507 (5th Cir. 1992). Thus, he is not
entitled to proceed IFP on appeal.
As it is plain that any appeal would be frivolous, we dismiss the appeal sua
sponte pursuant to 5TH CIR. R. 42.2. See Baugh, 117 F.3d at 202 n.24. The
dismissal of this appeal as frivolous and the dismissal by the district court of
Bryant’s suit each counts as a strike under 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Bryant is cautioned that he
has now accumulated two strikes and that if he accumulates three strikes he will
not be able to proceed in forma pauperis 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).
APPEAL DISMISSED; IFP MOTION DENIED; SANCTION WARNING
ISSUED.

2