Case: 16-50440 Document: 00513985604 Page: 1 Date Filed: 05/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-50440 FILED
May 9, 2017
Lyle W. Cayce
ROBERT BACK,
Clerk
Plaintiff–Appellant,
versus
UNIVERSITY TEXAS MEDICAL BRANCH–
CORRECTIONAL MANAGED HEALTHCARE;
STEVEN BOWERS, Doctor, Defendants Sued in Their Individual Capacities,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:15-CV-129
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Robert Back, Texas prisoner # 1465630, moves for leave to proceed in
forma pauperis (“IFP”) in his appeal of the dismissal of his civil rights lawsuit
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 16-50440 Document: 00513985604 Page: 2 Date Filed: 05/09/2017
No. 16-50440
under 28 U.S.C. § 1915(e)(2)(B). The district court certified that the appeal
was not taken in good faith for the reasons in its order dismissing the case.
Thus, the district court’s certification decision is inextricably intertwined with
the merits of the case, to which we now turn. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
Where, as here, the district court dismisses a complaint under
§ 1915(e)(2)(B) as both frivolous and for failure to state a claim, we review the
dismissal de novo. Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). Back’s
complaint is based on his allegation that Dr. Steven Bowers, aided and abetted
by the University of Texas Medical Branch, submitted a perjurious affidavit in
a federal civil action, filed by Back, that has been dismissed. The alleged per-
jurious statement consists of a single sentence in a five-page affidavit, and,
read in context, the statement offers an ultimate opinion on the merits of
Back’s civil claim rather than a statement of fact. Although Back maintains
that he has stated a cognizable claim, he has failed to identify which of his
federal rights has been violated. Accordingly, the district court did not err in
dismissing the complaint as frivolous and for failure to state claim. See Sam-
ford, 562 F.3d at 678; Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d 1402, 1406
(5th Cir. 1995).
Back is incorrect in stating that the district court improperly granted a
motion filed per Federal Rule of Civil Procedure 12(b)(6) in the absence of
affidavits and evidence from the defendants. If such extra-pleading materials
had been accepted and considered, the motion would have been converted to
one filed per Federal Rule of Civil Procedure 56. See FED. R. CIV. P. 12(d).
Finally, to the extent that Back seeks civil-contempt sanctions, they must be
sought in the original action. See Gompers v. Buck’s Stove & Range Co.,
221 U.S. 418, 444–45 (1911).
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No. 16-50440
In light of the foregoing, Back has failed to show that his appeal involves
legal points arguable on their merits. See Howard v. King, 707 F.3d 215, 220
(5th Cir. 1983). We therefore deny his IFP motion and dismiss the appeal as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of Back’s complaint and our dismissal of
this appeal both count as strikes for purposes of 28 U.S.C. § 1915(g). See Cole-
man v. Tollefson, 135 S. Ct. 1759, 1763 (2015); Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). Back has recently had another civil appeal dismissed
as frivolous, Back v. Amarillo Police Dep’t, ___ F. App’x ___, No. 15-11054, 2017
WL 367961 (5th Cir. Jan. 25, 2017), and that dismissal also counts as a strike
under § 1915(g), Adepegba, 103 F.3d at 387. Having now accumulated three
strikes for purposes of § 1915(g), Back may no longer 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. § 1915(g).
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