Drummer v. Maynard ( 2023 )

Case: 22-40449 Document: 00516758447 Page: 1 Date Filed: 05/22/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-40449 May 22, 2023
____________
Lyle W. Cayce
Cornel Jackie Drummer, Clerk
Plaintiff—Appellant,
versus
Ken Maynard, III; Aaron Mohantly; Dr. Hague, Medical
Doctor; University of Texas Medical Branch Medical
Staff, George Beto Unit,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:19-CV-387
______________________________
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam:*
Cornel Jackie Drummer, Texas prisoner # 00619316, appeals from the
dismissal of his civil rights action as frivolous and for failure to state a claim
on which relief may be granted. Drummer filed the action pursuant to 42
U.S.C. § 1983 to complain of alleged deliberate indifference to his serious
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40449 Document: 00516758447 Page: 2 Date Filed: 05/22/2023
No. 22-40449
medical needs. Currently pending before this court are several motions filed
by Drummer.
Because Drummer has not shown exceptional circumstances, his
motion for the appointment of counsel is DENIED. See Ulmer v. Chancellor,
691 F.2d 209, 212-13 (5th Cir. 1982). Drummer recently paid the appellate
filing fee, and therefore his motion to proceed in forma pauperis (IFP) on
appeal is DENIED as moot. Drummer’s two motions for judicial notice are
also DENIED.
An appeal should be dismissed upon the hearing of any interlocutory
motion where “it appears to the court that the appeal is frivolous and entirely
without merit.” 5th Cir. R. 42.2. Our thorough examination of
Drummer’s brief and the record reveals no nonfrivolous issue. The brief
raises only one concrete argument. Contrary to Drummer’s contention, the
district court did not err by dismissing his civil action sua sponte without
ordering a response from the defendants. See Green v. McKaskle, 788 F.2d
1116, 1119 (5th Cir. 1986); 28 U.S.C. § 1915(e)(2)(B)(ii). Because
Drummer’s appeal is frivolous and without any arguable merit, it is
DISMISSED. See 5th Cir. R. 42.2.
The district court’s dismissal counts as one strike under § 1915(g),
and Drummer incurs an additional strike for this frivolous appeal. See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on
other grounds by Coleman v. Tollefson, 575 U.S. 532, 537 (2015). Drummer is
WARNED that if he accumulates three strikes, he will no longer be allowed
to proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious bodily injury. See § 1915(g).
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