Warren Canady v. Michael Roesler

Case: 16-20009 Document: 00513670183 Page: 1 Date Filed: 09/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20009
FILED
September 8, 2016
Lyle W. Cayce
WARREN PIERRE CANADY, Clerk
Plaintiff-Appellant
v.
MICHAEL ROESLER, Senior Warden; KEITH GORSUCH, Assistant Warden;
CHARLES LONDIS, Assistant Warden; RICHARD KEMBRO, Lieutenant;
SHANTORA GREGGS, Correctional Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-1938
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Warren Pierre Canady, Texas prisoner # 723784, moves for leave to
proceed in forma pauperis (IFP) to appeal the district court’s dismissal of his
42 U.S.C. § 1983 complaint pursuant to the three-strikes provision of 28 U.S.C.
§ 1915(g). Under § 1915(g), a prisoner may not proceed IFP in a civil action or
in an appeal of a judgment in a civil action if he has, on three or more occasions
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20009 Document: 00513670183 Page: 2 Date Filed: 09/08/2016
No. 16-20009
during the incarceration, brought an action or appeal that was dismissed as
frivolous or for failure to state a claim, unless the prisoner is under imminent
danger of serious physical injury. Canady has failed to demonstrate that he
was under imminent danger of serious physical injury at the time that he
sought to file his complaint in the district court, proceed with his appeal, or
move to proceed IFP. See § 1915(g); Baños v. O’Guin, 144 F.3d 883, 884 (5th
Cir. 1998). His allegations that he has been harassed and prevented from
practicing his Muslim religion, that an officer pushed him in the chest and
insulted him on one occasion almost two years before the filing of the civil
rights complaint, and that a disciplinary officer yelled at him and threatened
him two months prior to the filing of the complaint are insufficient to establish
that he was in imminent danger of serious physical injury at the relevant
times, despite his conclusional assertion in an affidavit that he faces such
danger. See § 1915(g); Baños, 144 F.3d at 884-85. Thus, Canady’s motion for
leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous.
See 5TH CIR. R. 42.2; Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
2