Ernest Martin v. Lolita Ramos ( 2017 )


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  •      Case: 15-41075      Document: 00513854040         Page: 1    Date Filed: 01/30/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 15-41075
    Fifth Circuit
    FILED
    Summary Calendar                         January 30, 2017
    Lyle W. Cayce
    ERNEST MARTIN,                                                                    Clerk
    Plaintiff-Appellant
    v.
    LOLITA RAMOS; SUMMER TANNER,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 1:15-CV-171
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Proceeding pro se and in forma pauperis (IFP), Ernest Martin, Texas
    prisoner # 1042741, appeals the dismissal of his 42 U.S.C. § 1983 complaint
    pursuant to 28 U.S.C. § 1915. Martin was convicted of aggravated kidnapping,
    was determined to be a habitual offender, and was sentenced to 40 years in
    prison.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41075     Document: 00513854040      Page: 2   Date Filed: 01/30/2017
    No. 15-41075
    In his § 1983 complaint, Martin alleged that the defendants denied him
    access to the courts by ignoring or refusing to comply with his requests and
    motions for a copy of the documents and transcripts from his criminal case,
    thereby interfering with his ability to file a state habeas application. Because
    the district court dismissed the complaint both as frivolous and for failure to
    state a claim, we apply the de novo standard of review. See Geiger v. Jowers,
    
    404 F.3d 371
    , 373 (5th Cir. 2005). A complaint is “frivolous if it does not have
    an arguable basis in fact or law.” Brewster v. Dretke, 
    587 F.3d 764
    , 767 (5th
    Cir. 2009). A complaint fails “to state a claim if the facts, taken as true, do not
    state a claim that is plausible on its face.” Coleman v. Sweetin, 
    745 F.3d 756
    ,
    763 (5th Cir. 2014). Prisoners have a constitutionally protected right of access
    to the courts. Bounds v. Smith, 
    430 U.S. 817
    , 821 (1977). A prisoner must
    show actual injury to prevail on a claim that he was denied access to the courts.
    Lewis v. Casey, 
    518 U.S. 343
    , 349 (1996).
    As conceded by Martin, he previously was able to file two state habeas
    applications challenging his conviction without the sought-after documents or
    transcripts. The fact that he did not obtain the relief that he desired does not
    support a denial-of-access-to-the-court claim. Crowder v. Sinyard, 
    884 F.2d 804
    , 814 (5th Cir. 1989), abrogated on other grounds by Horton v. California,
    
    496 U.S. 128
    (1990). As Martin has not alleged an actual injury, he cannot
    state a claim of denial of access to the court. See 
    Lewis, 518 U.S. at 349
    .
    The instant appeal is without arguable merit and, therefore, is dismissed
    as frivolous. See Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983); 5TH
    CIR. R. 42.2. The district court’s dismissal of his complaint and the dismissal
    of this appeal as frivolous each count as a strike under § 1915(g). See Coleman
    v. Tollefson, 
    135 S. Ct. 1759
    , 1761 (2015); Adepegba v. Hammons, 
    103 F.3d 383
    ,
    385-87 (5th Cir. 1996). Martin is cautioned that if he accumulates three strikes
    2
    Case: 15-41075    Document: 00513854040     Page: 3   Date Filed: 01/30/2017
    No. 15-41075
    under § 1915(g), he will not be able to proceed IFP in any civil action or appeal
    filed while he is incarcerated or detained in any facility unless he is in
    imminent danger of serious physical injury. See § 1915(g). Martin’s motion
    for appointment of counsel is denied.
    APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION
    FOR APPOINTMENT DENIED.
    3