Graves v. Hartley ( 2023 )

Case: 22-50430 Document: 00516606949 Page: 1 Date Filed: 01/11/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50430
FILED
January 11, 2023
____________
Lyle W. Cayce
Scott Graves, Clerk
Plaintiff—Appellant,
versus
Brittany Hartley, Sergeant of Corrections for Alfred D. Hughes Unit,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:22-CV-465
______________________________
Before Haynes, Engelhardt, and Oldham, Circuit Judges.
Per Curiam: *
Scott Graves, Texas prisoner # 2023036, moves to appeal in forma
pauperis (IFP) from the dismissal of his civil rights complaint brought under
42 U.S.C. § 1983. The district court concluded that Graves was barred from
proceeding IFP because he had three strikes under 28 U.S.C. § 1915(g) and
had not established that he was under imminent danger of serious physical
injury.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50430 Document: 00516606949 Page: 2 Date Filed: 01/11/2023
No. 22-50430
The conclusory and uncorroborated allegations in Graves’s pleadings
are insufficient to make the showing required to avoid application of the three
strikes bar under § 1915(g). See Baños v. O’Guin, 144 F.3d 883, 884-85 (5th
Cir. 1998). Accordingly, his motion for leave to proceed IFP on appeal is
denied. Because the facts surrounding the IFP decision are inextricably
intertwined with the merits of the issue on appeal, his appeal is dismissed as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5th
Cir. R. 42.2.
Graves is warned that he is barred under § 1915(g) from proceeding
IFP in any civil action or appeal filed in a court of the United States while he
is incarcerated or detained in any facility unless he is under imminent danger
of serious physical injury. Any pending or future frivolous or repetitive filings
in this court or any court subject to this court’s jurisdiction may subject him
to additional sanctions, including monetary sanctions and limits on his access
to this court and any court subject to this court’s jurisdiction.
MOTION DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED.
2