Robert McCoy v. Craig Stokes ( 2010 )

Case: 10-30167 Document: 00511159936 Page: 1 Date Filed: 06/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2010
No. 10-30167
Summary Calendar Lyle W. Cayce
Clerk
ROBERT LEROY MCCOY,
Plaintiff-Appellant,
versus
CRAIG STOKES; LARRY C. DEAN; ROBERT PARKER; DANIEL TALLEY;
SHERIFF’S OFFICE BOSSIER PARISH,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:08-CV-1918
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert McCoy, Louisiana inmate # 55949, moves this court for leave to ap-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30167 Document: 00511159936 Page: 2 Date Filed: 06/30/2010
No. 10-30167
peal in forma pauperis (“IFP”) following the entry of summary judgment dis-
missing his civil rights complaint. By moving for leave to appeal IFP, McCoy has
challenged the district court’s determination that the appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
This court’s inquiry into whether the appeal is taken in good faith “is limit-
ed to whether the appeal involves ‘legal points arguable on their merits (and
therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(citation omitted). If we uphold the district court’s certification that the appeal
is not taken in good faith, McCoy must pay the appellate filing fee, or the appeal
will be dismissed for want of prosecution. See Baugh, 117 F.3d at 202. If the ap-
peal is frivolous, we may dismiss it sua sponte under 5th Cir. R. 42.2. Id. at 202
n.24.
McCoy has waived the issue whether the appeal is taken in good faith by
failing to challenge any aspect of the district court’s determination that McCoy
did not allege a constitutional violation by any named defendant. See Hughes
v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Moreover, the record reveals no
error in the dismissal.
Because the appeal does not present any legal points arguable on their
merits, the motion for leave to proceed IFP is denied, and the appeal is dismissed
as frivolous. See Baugh, 117 F.3d at 202 & n. 24. The dismissal counts as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). McCoy is cautioned that if he accumulates three strikes, he
will not be allowed to proceed IFP in any civil action or appeal filed while he is
detained or incarcerated in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
2