Torres v. Foust ( 2023 )

Case: 23-40413 Document: 00516966533 Page: 1 Date Filed: 11/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
November 14, 2023
No. 23-40413
____________ Lyle W. Cayce
Clerk
Israel Antonio Torres,
Plaintiff—Appellant,
versus
Keith Foust, Lieutenant; Female Officer,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:23-CV-107
______________________________
Before Smith, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
Israel Antonio Torres, Texas prisoner # 01601476, moves to proceed
in forma pauperis (IFP) on appeal following the district court’s dismissal of
his civil rights complaint filed under 42 U.S.C. § 1983, and denial of his
motion for reconsideration filed under Federal Rule of Civil Procedure 59(e).
The district court dismissed Torres’s complaint because he failed to comply
with the court’s order directing him to file an acceptable amended complaint
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-40413
and a properly supported application to proceed IFP. See Fed. R. Civ.
P. 41(b); Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014).
Torres’s IFP motion challenges 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 limited 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).
In his appellate filings, Torres largely discusses his inability to afford
the appellate filing fee. He does not address his failure to comply with the
district court’s order that he file a properly supported IFP application and an
amended complaint, much less provide any argument challenging the reasons
for the district court’s dismissal of his case. Torres does not make the
requisite showing that he has a nonfrivolous issue for appeal. See Howard,
707 F.2d at 220. Accordingly, his motion to proceed IFP is DENIED, and
his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24;
5th Cir. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike for purposes
of 28 U.S.C. § 1915(g). Prior to this appeal, Torres had accumulated three
strikes from the dismissal of three respective causes of action. See Torres v.
Foust, 6:23-CV-145 (E.D. Tex. June 7, 2023); Torres v. McLemore, 4:22-CV-
4197 (S.D. Tex. Jan. 30, 2023); Torres v. McLemore, 4:22-CV-3994 (S.D. Tex.
Dec. 22, 2022). Torres is therefore BARRED from proceeding IFP in any
civil action or appeal filed in a court of the United States while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g). In addition, he is WARNED that any
pending or future frivolous or repetitive filings in this court or any court
subject to this court’s jurisdiction may subject him to additional sanctions,
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Case: 23-40413 Document: 00516966533 Page: 3 Date Filed: 11/14/2023
No. 23-40413
including monetary sanctions and limits on his access to this court and any
court subject to this court’s jurisdiction.
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