Prescott v. Doe

Case: 21-20151 Document: 00516267347 Page: 1 Date Filed: 04/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 5, 2022
No. 21-20151 Lyle W. Cayce
Summary Calendar Clerk
Anthony Prescott,
Plaintiff—Appellant,
versus
John Doe, Food Service Manager, Byrd Unit; Steven Miller,
Warden, Byrd Unit; John Doe, Officer, Byrd Unit; Bryan Collier,
Executive Director, Texas Department of Criminal Justice,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4231
Before Jones, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Anthony Prescott, Texas prisoner # 2174108, seeks leave to proceed
in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. § 1983complaint as frivolous and for failure to state a claim, pursuant to 28 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 21-20151 Document: 00516267347 Page: 2 Date Filed: 04/05/2022
No. 21-20151
§§ 1915A and 1915(e)(2)(B). By moving in this court to proceed IFP, he is
challenging the district court’s certification pursuant to 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3)(A) that any
appeal would not be taken in good faith because, for the reasons relied upon
in the order and judgment, Prescott will not present a nonfrivolous appellate
issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Before this court, Prescott argues that he is financially eligible to
proceed IFP and that his appeal is not brought in bad faith, conclusionally
renewing his claim that the defendants conspired to feed him food tainted
with a harmful substance with the intent to cause him serious bodily injury,
in violation of the Eighth Amendment. However, he fails to brief any
argument addressing the reasons for the district court’s dismissal. His failure
to identify any error in the district court’s analysis constitutes an
abandonment of such claims. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). Consequently, the IFP motion is
DENIED, and the appeal is DISMISSED. See 5TH CIR. R. 42.2.
The district court’s dismissal of the complaint as frivolous and for
failure to state a claim and the dismissal as frivolous of this appeal each count
as a strike under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S.
532, 537 (2015). Prescott has one previous strike. See Prescott v. Abbott,
801 F. App’x 335, 336 (5th Cir. 2020). He now has three strikes. See
Coleman, 575 U.S. at 537. Thus, he is now BARRED from proceeding IFP
in any civil action or appeal filed while he is incarcerated or detained unless
he is under imminent danger of serious physical injury. See § 1915(g);
McGarrah v. Alford, 783 F.3d 584, 585 (5th Cir. 2015). Prescott is
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Case: 21-20151 Document: 00516267347 Page: 3 Date Filed: 04/05/2022
No. 21-20151
WARNED that any pending or future frivolous or repetitive filings in this
court or any court subject to this court’s jurisdiction may subject him to
additional sanctions.
MOTION DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION IMPOSED; WARNING ISSUED.
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