Dwight Bacon v. Benjamin Zeringue

Case: 19-30076 Document: 00515135366 Page: 1 Date Filed: 09/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30076 FILED
September 27, 2019
Lyle W. Cayce
DWIGHT BACON, Clerk
Plaintiff-Appellant
v.
BENJAMIN ZERINGUE, Major in his Individual and Official Capacity,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:16-CV-220
Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Dwight Bacon, Louisiana prisoner # 556894, moves for leave to proceed
in forma pauperis (IFP) in this appeal of the jury’s verdict in favor of the
defendant in this 42 U.S.C. § 1983 case. The motion is a challenge to the
district court’s certification 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 a
litigant’s good faith “is limited to whether the appeal involves legal points
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-30076 Document: 00515135366 Page: 2 Date Filed: 09/27/2019
No. 19-30076
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Bacon fails to meet this standard. Insofar as his claims rely upon a trial
video, these arguments do not show an arguable claim because no such video
exits. See id. His vague and conclusional assertions concerning the alleged
withholding of unspecified evidence and the coaching of witnesses likewise fail
to show arguable claims. See id. Accordingly, the motion for leave to proceed
IFP is DENIED, his motion for the trial video is likewise DENIED, and the
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 constitutes a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996), abrogated in part on other grounds by Coleman v. Tollefson, 135 S. Ct.
1759, 1762-63 (2015). Bacon is WARNED that accumulating three strikes will
preclude him from proceeding IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
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