Case: 16-51417 Document: 00514550580 Page: 1 Date Filed: 07/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51417 FILED
July 11, 2018
Lyle W. Cayce
JOHN N. TURNER, Clerk
Plaintiff-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; WARDEN J.
GRIMES, Former Warden, Lynaugh Unit, Region Four Director; WARDEN
WHITFIELD, Lynaugh Unit; WARDEN SWIFT, Lynaugh Unit; DOCTOR
FNU TALLEY; NURSE PRACTITIONER KEITH SEIDEL; PSYCHOLOGIST
ROCKY INGRAM; FNU LENHERN, Grievance Officer; FNU FUENTES,
Infirmary Administrator; FNU CHAVEZ, Safety Office and Risk Management;
JOHN DOES; JANE DOES; ASSISTANT WARDEN FNU BOWERS,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:15-CV-32
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
John N. Turner, Texas prisoner # 713796, moves for leave to proceed in
forma pauperis (IFP) in this appeal from the dismissal of his 42 U.S.C. § 1983
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51417 Document: 00514550580 Page: 2 Date Filed: 07/11/2018
No. 16-51417
action against the defendants. Turner’s IFP motion in this court constitutes a
challenge to the district court’s certification that the appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The district
court stated that a notice of appeal was placed in the prison mail system on or
about September 25, 2016, which would constitute a timely filing, but neither
the district court’s order nor the record as a whole makes clear that the notice
was addressed to the correct court. See Houston v. Lack, 487 U.S. 266, 272-73
(1988); see also Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). We
pretermit that question, see United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000), because Turner does not show that the § 1983 complaint or any
other claim in this case has arguable merit, see Taylor v. Johnson, 257 F.3d
470, 472 (5th Cir. 2001); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Therefore, we DENY the IFP motion and sua sponte DISMISS this frivolous
suit. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.
The dismissal of the complaint by the district court and the dismissal of
this appeal as frivolous constitute two strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Turner is
WARNED that accumulating a third strike will preclude him from proceeding
IFP in any civil action or appeal while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; IFP MOTION DENIED;
SANCTION WARNING ISSUED.
2
John Turner v. Lorie Davis, Director
Combined Opinion