Lewis v. Louisiana Secretary Department of Public Safety & Corrections , 414 F. App'x 724 ( 2011 )

Case: 10-30840 Document: 00511398967 Page: 1 Date Filed: 03/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2011
No. 10-30840
Summary Calendar Lyle W. Cayce
Clerk
FREDDIE R. LEWIS,
Plaintiff-Appellant
v.
LOUISIANA SECRETARY DEPARTMENT OF PUBLIC SAFETY &
CORRECTIONS; CORRECTIONS CORPORATION OF AMERICA; WINN
CORRECTIONAL CENTER; SECRETARY OF PUBLIC SAFETY AND
CORRECTIONS; JACK GARNER; TIM WILKINSON; RANDY OLLIFF,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:09-CV-2026
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Freddie R. Lewis, Louisiana prisoner # 395306, moves for leave to proceed
in forma pauperis (IFP) following the district court’s certification that his appeal
from dismissal as frivolous of his civil rights action is taken in bad faith.
Lewis makes the conclusional assertion in support of his motion that he
stated colorable claims of constitutional deprivation; actual injury; violation of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30840 Document: 00511398967 Page: 2 Date Filed: 03/02/2011
No. 10-30840
posted policy, rules, regulations of the Department of Corrections; breach and
default of management services contract; and violations of state law, federal law
and constitutional law. Although we construe liberally his pro se brief, Lewis
has failed to brief any issues for his challenge to the district court’s certification
that his appeal is taken in bad faith. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). His IFP motion is denied.
This court may sua sponte dismiss an appeal pursuant to Fifth Circuit
Rule 42.2 if “the merits are so intertwined with the certification decision as to
constitute the same issue” and it is apparent that the appeal would lack merit.
Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). The district court’s
certification was based on the merits of Lewis’s claims that he was denied access
to the courts and was entitled to injunctive relief, and therefore is intertwined
with the merits of the case. Because Lewis has failed to brief his challenge to
the certification, his appeal is dismissed as frivolous. See Baugh, 117 F.3d at
202 n.24.
The district court’s dismissal as frivolous of Lewis’s civil rights action
pursuant to § 1915(e) and our dismissal of this appeal as frivolous both count as
strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). We caution Lewis that if he accumulates three strikes,
he will not be permitted to proceed IFP in any civil action or appeal filed while
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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