Moorer v. United States Penitentiary Pollock ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 08-30736
Conference Calendar Charles R. Fulbruge III
Clerk
STEPHAN MOORER
Plaintiff-Appellant
v.
UNITED STATES PENITENTIARY POLLOCK, Executive, Supervisory
& Custodial Staff; FEDERAL CORRECTIONAL INSTITUTION OAKDALE;
S HARTLINE; G MALDONADO; H LAPPIN; H WATTS; F MENNIFEE;
J BELL; K EDENFIELD; CAPTAIN MARQUES; T GARROW; S I A
TOWNSEND; S MORRISON; M MELTON; C JEFFERSON; C ZERR; D CRUZ
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:08-CV-365
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephan Moorer, federal prisoner # 03502-007, has moved for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his original
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), complaint as
frivolous and his amended complaint for lack of proper venue. By moving for
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30736
leave to proceed IFP, Moorer is challenging the district court’s certification that
the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Moorer fails to address the district court’s finding that his
original complaint was precluded by Sandin v. Conner, 515 U.S. 472 (1995), and
that his amended complaint was filed in the wrong venue. Moorer has thus
abandoned any challenge to the district court’s dismissal. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Moorer has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,
Moorer’s motion to proceed IFP is denied. See Baugh, 117 F.3d at 202 n.24.
Because his appeal is frivolous, see Howard, 707 F.2d at 219-20, the appeal is
dismissed. See 5 TH C IR. R. 42.2.
The district court’s dismissal of Moorer’s original complaint as frivolous
and our dismissal of this appeal as frivolous both count as strikes for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Moorer is warned that, if he accumulates three strikes pursuant to
§ 1915(g), 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.” § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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