Larry McCray v. United States

Case: 16-31205 Document: 00514220988 Page: 1 Date Filed: 11/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-31205
Fifth Circuit
FILED
Summary Calendar November 1, 2017
Lyle W. Cayce
LARRY WAYNE MCCRAY, Clerk
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CV-260
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Larry Wayne McCray, Louisiana prisoner # 314700, appeals the district
court’s judgment dismissing his 42 U.S.C. § 1983 civil rights complaint as
frivolous under 28 U.S.C. § 1915(e). McCray sought a ruling from the district
court that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) “and
all other statutes, laws and rules” that prevented him from exercising his First
Amendment right of access to the courts were unconstitutional.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-31205 Document: 00514220988 Page: 2 Date Filed: 11/01/2017
No. 16-31205
McCray points to no specific provision of the AEDPA and identifies no
other statute, rule, or law restricting his right of access to the courts. He also
fails to set forth any facts showing that the application of the AEDPA, or any
other statute, has deprived him of “a reasonably adequate opportunity to file”
a nonfrivolous claim. Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th Cir.
1997) (quotation marks and citation omitted). Moreover, both the Supreme
Court and this court have consistently upheld the constitutionality of various
provisions of the AEDPA.
Under the circumstances, the district court did not abuse its discretion
in dismissing McCray’s complaint as frivolous. See Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005). Accordingly, the district court’s judgment is
AFFIRMED. Further, because the district court’s dismissal of McCray’s
complaint as frivolous counts as a strike under Section 1915(g), McCray is
WARNED that if he accumulates three strikes, he will not be allowed to
proceed in forma pauperis in any civil action or appeal unless he is under
imminent danger of serious physical injury. See § 1915(g).
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