Charles Shirley v. McIntosh

Case: 10-40883 Document: 00511551044 Page: 1 Date Filed: 07/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2011
No. 10-40883
Summary Calendar Lyle W. Cayce
Clerk
CHARLES ELLIS SHIRLEY,
Plaintiff-Appellant,
v.
OFFICER UNKNOWN MCINTOSH, Henderson County Sheriff’s Office,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:10-CV-353
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Charles Ellis Shirley moves for leave to proceed in forma pauperis (IFP)
in this appeal from the district court’s dismissal of his 42 U.S.C. § 1983complaint. In his § 1983 complaint, Shirley alleged that the defendant violated
his right of access to the courts.
The district court may deny a motion for leave to appeal IFP by certifying
that the appeal is not taken in good faith and by providing written reasons for
the certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-40883
R. APP. P. 24(a). If a prisoner opts to challenge the district court’s certification
decision, the prisoner may file a motion in the court of appeals for leave to
proceed IFP, which “must be directed solely to the trial court’s reasons for the
certification decision.” See Baugh, 117 F.3d at 202. This court, however, may
dismiss the appeal as frivolous when it is apparent that an appeal would be
meritless. Id. at 202 n.24; 5TH CIR. R. 42.2. The 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) (internal quotation marks and citation
omitted).
The district court adopted the findings and conclusions of the magistrate
judge and dismissed Shirley’s § 1983 complaint as frivolous. This court reviews
the dismissal of a complaint as frivolous under 28 U.S.C. § 1915(e)(2) for abuse
of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). Shirley has
failed to show that his appeal involves “legal points arguable on their merits.”
Howard, 707 F.2d at 220 (internal quotation marks and citation omitted). As
the magistrate judge noted, a prisoner must demonstrate a hindrance to his
underlying claim to prevail on a claim that his right of access to the courts has
been violated. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v.
Casey, 518 U.S. 343, 351 (2002); see also Johnson v. Rodriguez, 110 F.3d. 299,
311 (5th Cir. 1997).
No constitutional violation occurs when a prisoner has time to re-prepare
and file his legal document despite impediments caused by officials. Richardson
v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988). Although the officer may have
confiscated Shirley’s writ of habeas corpus and his application to proceed IFP,
Shirley had time to re-prepare and timely file both. The magistrate judge found,
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No. 10-40883
therefore, that Shirley had suffered neither harm nor prejudice as a result of the
alleged misconduct.
As the district court noted in dismissing his claim, Shirley failed to
address the magistrate judge’s finding of no harm or prejudice, an error we note
remains uncorrected in Shirley’s present motion to proceed IFP. For the second
time, Shirley has failed to brief an argument challenging the basis for the
district court's decision, and thus he has waived any such challenge on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We thus conclude
that Shirley’s appeal is without arguable merit, and we dismiss the appeal as
frivolous. See 5th Cir. R. 42.2. Shirley is cautioned that the dismissal of his suit
by the district court and the dismissal of his appeal count as strikes pursuant to
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). He is further cautioned that if he accumulates three strikes under
§ 1915(g), he will not be able 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 physical injury. See § 1915(g).
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.