Jeremy Reese v. Stafeny Shearwood ( 2017 )

Case: 16-11352 Document: 00514106615 Page: 1 Date Filed: 08/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11352 FILED
August 8, 2017
Lyle W. Cayce
JEREMY DALE REESE, also known as Monster,
Clerk
Plaintiff-Appellant
v.
STAFENY SHEARWOOD, Head Nurse, Tom Green County Jail, Individual
and Official Capacity; THOMAS FREEDEN, Doctor, Center for Disease
Control and Prevention, Individual and Official Capacity; SANDRA LNU, Case
Manager, Individual and Official Capacity; SHANNON MEDICAL CENTER;
ZACH O'NEAL, Physician Assistant, Individual and Official Capacity; LA
ESPERANZA CLINIC; ANTHONY MIKESH, Texas Commission, Individual
and Official Capacity; RAFAEL HURTADO, Lab, Tom Green County Jail,
Individual and Official Capacity; FNU BRIONES, Deputy, Individual and
Official Capacity; DALE PEARCE, Chief Deputy, Individual and Official
Capacity; TODD ALLEN, Captain, Individual and Official Capacity; AMY
WRIGHT, Lieutenant, Individual and Official Capacity,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:16-CV-8
Case: 16-11352 Document: 00514106615 Page: 2 Date Filed: 08/08/2017
No. 16-11352
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Jeremy Dale Reese moves for leave to proceed in forma pauperis (IFP) to
appeal the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant
to the three-strikes provision of 28 U.S.C. § 1915(g). A prisoner may not
proceed IFP in a civil action or appeal a judgment in a civil action if he has, on
three or more prior occasions, while incarcerated or detained in a facility,
“brought an action or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.” § 1915(g). 1
Reese does not dispute that he has three strikes but instead argues that
the exception to the § 1915(g) bar should apply because he is under imminent
danger of a serious physical injury. In support of this contention, he alleges
unpleasant symptoms and speculates that he has an undiagnosed contagious
disease, although his submissions establish that he has received medical
examination and treatment. On this record, Reese has failed to demonstrate
that he was under imminent danger of serious physical injury at the time that
he filed his complaint in the district court, proceeded with his appeal, or moved
to proceed IFP. See id.; Baños, 144 F.3d at 884-85; Arvie v. Tanner, 518 F.
App’x 304, 305 (5th Cir. 2013). His motion is therefore denied.
* 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.
1 Reese’s release from incarceration while his IFP motion was pending does not relieve
him from the requirements of § 1915(g). See Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.
1998); see also Torns v. Miss. Dep’t of Corr., 421 F. App’x 316, 317 (5th Cir. 2010). His release
also does not moot his § 1983 claim for damages. See Cruz v. Estelle, 497 F.2d 496, 499 (5th
Cir. 1974)
2
Case: 16-11352 Document: 00514106615 Page: 3 Date Filed: 08/08/2017
No. 16-11352
The facts surrounding the IFP decision are inextricably intertwined with
the merits of Reese’s appeal. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24
(5th Cir. 1997). The appeal presents no nonfrivolous issues and is dismissed
as frivolous. See 5TH CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.
3