Case: 21-20136 Document: 00516046437 Page: 1 Date Filed: 10/07/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 7, 2021 No. 21-20136 Lyle W. Cayce Clerk Kenneth Sowell, Plaintiff—Appellant, versus Jeffery Richardson; Captain Hill; Bradley Vessel; Michelle Northcutt; Texas Department of Criminal Justice; Estelle Medical Department; H. M. Pederson, Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-4411

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam:* Kenneth Sowell, Texas prisoner # 1322390, moves for leave to proceed in forma pauperis (IFP) in an appeal from the district court’s dismissal of his complaint against prison officials under 42 U.S.C. § 1983, the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-20136 Document: 00516046437 Page: 2 Date Filed: 10/07/2021

No. 21-20136

Americans with Disabilities Act, and state tort law. Sowell contends that the district court erroneously dismissed the complaint under 28 U.S.C. § 1915(g) after concluding he had three strikes. The district court denied Sowell’s motion to proceed IFP, certifying that the appeal was not taken in good faith.

When a prisoner challenges the district court’s certification that an appeal is not taken in good faith, “the motion must be directed solely to the trial court’s reasons for the certification decision,” Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), and our inquiry “is limited to whether the appeal involves legal points arguable on their merits” so that the appeal is not frivolous, Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations omitted). In a different case, we previously agreed with Sowell that he has only two strikes. See Sowell v. Barber, No. 20- 20519, at 2 (5th Cir. Feb. 23, 2021) (unpublished); see also Brown v. Megg, 857 F.3d 287, 290-92 (5th Cir. 2017). Sowell thus has not yet accumulated three strikes.

Accordingly, Sowell’s motion to proceed IFP on appeal is GRANTED. Because the district court’s dismissal of Sowell’s complaint rested on the erroneous conclusion that Sowell had three § 1915(g) strikes, the district court’s order dismissing Sowell’s complaint is VACATED and the case is REMANDED for further proceedings.