Grayer v. Couey

Case: 19-60685 Document: 00515784808 Page: 1 Date Filed: 03/17/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 17, 2021
No. 19-60685 Lyle W. Cayce
Summary Calendar Clerk
Melvin Grayer,
Plaintiff—Appellant,
versus
Zachary Couey, Officer; Harold Coulter, Doctor; Elaine
Lege, Captain; Troy Peterson, Sheriff; Jane and John Does,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:17-CV-316
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Melvin Grayer, Mississippi prisoner # 08710, # 406020, and # 433359,
appeals the magistrate judge’s final judgment dismissing his 42 U.S.C. § 1983*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-60685 Document: 00515784808 Page: 2 Date Filed: 03/17/2021
No. 19-60685
complaint. He has also filed motions for the appointment of counsel and a
stay pending appeal.
At the time Grayer filed his notice of appeal and moved for leave to
proceed in forma pauperis (IFP) in this case, he had, on at least three prior
occasions while he was incarcerated, brought an action or appeal in a court of
the United States that was dismissed as frivolous, malicious, or for failure to
state a claim upon which relief could be granted. See Grayer v. Filliyaw, 737
F. App’x 215, 215-16 (5th Cir. 2018); Grayer v. Filliyaw, No. 3:16-CV-709
(S.D. Miss. Aug. 22, 2017); Grayer v. GEO Corp. Office Grp., Inc., 602 F.
App’x 213, 213-14 (5th Cir. 2015). He is therefore barred from proceeding
IFP 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
28 U.S.C. § 1915(g). There is no allegation, nor does the record reflect, that
Grayer was under imminent danger of serious physical injury when he filed
his notice of appeal or IFP motion. See id. Thus, the magistrate judge
improvidently granted him leave to proceed IFP on appeal.
Accordingly, Grayer’s IFP status is decertified and the appeal is
dismissed. Grayer has 15 days from the date of this opinion to pay the full
appellate filing fee to the clerk of the district court, should he wish to reinstate
his appeal. His motions for the appointment of counsel and a stay pending
appeal are denied.
IFP DECERTIFIED; § 1915(g) BAR IMPOSED; MOTIONS
DENIED; APPEAL DISMISSED.
2