Thomas v. McFarland , 77 F. App'x 753 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-21267
Summary Calendar
DESTRY E. THOMAS,
Plaintiff-Appellant,
versus
KELVIN P. MCFARLAND; LANGSTON M. GEORGE-SMART;
RONALD V. WINGO,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-2305
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Destry E. Thomas, TDCJ-ID # 654261, has filed a motion to
proceed in forma pauperis (IFP) on appeal. By moving for IFP
status, Thomas is challenging the district court’s certification
that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(c)(3); FED.
R. APP. P. 24(a). Following a two-day jury trial and verdict for
the defendants, the district court found that Thomas’s 42 U.S.C.
*
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that this opinion should not be published and is not precedent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.
No. 02-21267
-2-
§ 1983 complaint was frivolous because his “testimony was
contradictory and inconsistent with the physical evidence.”
Thomas asserts that he presented testimony and evidence to
prove that defendant McFarland used excessive force. Thomas also
asserts that the district court did not provide proper notice of
a change in trial dates, held him to the same standards as a
licensed attorney, and refused to allow him to present certain
witnesses and evidence. Based upon our review of the record, we
conclude that none of these issues presents a non-frivolous issue
for appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Therefore, we uphold the district court’s order
certifying that the appeal was not taken in good faith. We also
conclude that the instant appeal is without arguable merit and is
frivolous. Thomas’s motion to proceed IFP is DENIED, and his
appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 and
n.24; 5TH CIR. R. 42.2.
The dismissal of Thomas’s appeal as frivolous counts as a
“strike” for the purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We caution Thomas
that once he accumulates three strikes, 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. See 28 U.S.C. § 1915(g).