GRAYER v. COUEY (2021)

United States Court of Appeals, Fifth Circuit.2021-03-17No. No. 19-60685

Summary · law.co

Holding. The court dismissed Grayer's appeal, decertified his IFP status, and imposed the statutory bar under 28 U.S.C. § 1915(g). Grayer was given 15 days to pay the full appellate filing fee to reinstate his appeal, and his motions for counsel and a stay were denied.

Melvin Grayer, an incarcerated Mississippi prisoner, appealed a magistrate judge's dismissal of his civil rights complaint under 42 U.S.C. § 1983 and sought to proceed in forma pauperis (IFP). The court examined Grayer's litigation history and found that he had previously filed at least three federal actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim. Under 28 U.S.C. § 1915(g), a prisoner with three or more such dismissals is barred from proceeding IFP in any civil action or appeal while incarcerated, unless facing imminent danger of serious physical injury. The record contained no evidence that Grayer faced such imminent danger when he filed his appeal. Consequently, the court determined that the magistrate judge had improperly granted Grayer's IFP status.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Application of the three-strikes rule barring in forma pauperis status for incarcerated litigants
Whether imminent danger of serious physical injury exception applied
Propriety of magistrate judge's grant of IFP status to barred litigant

Procedural posture

Grayer appealed a magistrate judge's dismissal of his § 1983 complaint and sought IFP status and appointment of counsel.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Melvin Grayer, Mississippi prisoner # 08710, # 406020, and # 433359, appeals the magistrate judges final judgment dismissing his 42 U.S.C. § 1983 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. Appx 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. Appx 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, Grayers 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.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* 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.