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James Ferguson v. Tonya Morgan ( 2018 )


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  •      Case: 17-60703      Document: 00514636197         Page: 1    Date Filed: 09/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60703                       September 11, 2018
Lyle W. Cayce
JAMES FERGUSON,                                                                  Clerk
Plaintiff-Appellant
v.
TONYA MORGAN; JACKIE WILLIAMS;                           LEMARCUS          RUFFIN;               R.
PENNINGTON; WARDEN FRANK SHAW,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-237
Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
James Ferguson, Mississippi prisoner # 60446, moves this court for a
transcript at government expense in this appeal of the dismissal of his 42
U.S.C. § 1983 complaint. He also seeks the appointment of counsel and for
leave to present newly discovered evidence.
To obtain a transcript at government expense, Ferguson must satisfy the
criteria of 28 U.S.C. § 753(f). See Harvey v. Andrist,
    754 F.2d 569
    , 571 (5th Cir.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60703      Document: 00514636197     Page: 2    Date Filed: 09/11/2018
No. 17-60703
1985). Section 753(f) provides, in part, that the United States shall pay the
fees for transcripts furnished in civil proceedings to persons permitted to
appeal in forma pauperis (IFP) if the trial judge or a circuit judge certifies that
the appeal is not frivolous (i.e., it presents a substantial question). § 753(f).
The moving party must also establish that the transcript is necessary for
proper disposition of the appeal. Richardson v. Henry,
    902 F.2d 414
    , 415 (5th
Cir. 1990);
    Harvey, 754 F.2d at 571
    . Ferguson cannot satisfy the requisite
criteria because he fails to set forth a cognizable § 1983 claim. See Jones v.
Greninger,
    188 F.3d 322
    , 326 (5th Cir. 1999); Neals v. Norwood,
    59 F.3d 530
    ,
533 (5th Cir. 1995).
Ferguson’s appeal is without arguable merit and is frivolous.             See
Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Accordingly, the appeal
is dismissed. See 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th
Cir. 1996). Ferguson is cautioned that once he accumulates three strikes, he
may not proceed IFP 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).   In light of the dismissal of his appeal,
Ferguson’s motion for appointment of counsel is denied. His motion to present
newly discovered evidence is also denied.
APPEAL       DISMISSED       AS   FRIVOLOUS;          MOTIONS      DENIED;
SANCTION WARNING ISSUED.
2