Jeffery Fussell v. Darrell Vannoy ( 2017 )

Case: 16-30808 Document: 00514047322 Page: 1 Date Filed: 06/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30808 FILED
June 23, 2017
JEFFERY JEROME FUSSELL,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
DARRELL VANNOY, Deputy Warden of Security,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CV-571
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jeffery Jerome Fussell, Louisiana prisoner # 103973, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s order
granting summary judgment in favor of the defendant and dismissing his civil
rights complaint. By seeking leave to proceed IFP in this court, Fussell is
challenging the district court’s certification that this appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30808 Document: 00514047322 Page: 2 Date Filed: 06/23/2017
No. 16-30808
As his sole issue on appeal, Fussell argues that the district court’s grant
of summary judgment should be reversed because his court appointed
attorneys were ineffective in presenting his claim that Vannoy had violated his
Eighth Amendment right to be free from cruel and unusual punishment by
keeping him in extended lockdown since he was placed there in 1989.
However, there is no constitutional right to an attorney in a civil rights case.
Sanchez v. United States Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986). Any
deficient conduct by Fussell’s attorneys does not constitute a basis for
invalidating the district court’s judgment. See id.
Fussell has not shown that he will raise a legal point on appeal that is
arguable on its merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, his motion for leave to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
Our 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 (5th Cir.
1996). At the time Fussell filed the instant notice of appeal and motion for
leave to proceed IFP on appeal, he had accumulated at least two strikes based
on dismissals as frivolous of previously filed interlocutory appeals in civil
rights cases. See Fussell v. Stalder, No. 95-30840, 1996 WL 101560, at *1 (5th
Cir. Feb. 29, 1996) (unpublished); Fussell v. Stalder, No. 95-30942, 1996 WL
101564, at *1 (5th Cir. Feb. 29, 1996) (unpublished). Because Fussell now has
accumulated at least three strikes for purposes of § 1915(g) he is barred from
proceeding 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).
MOTION TO PROCEED IFP DENIED; APPEAL DISMISSED;
28 U.S.C. § 1915(g) BAR IMPOSED.
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