Thomas v. Nino

Case: 23-40385 Document: 58-1 Page: 1 Date Filed: 03/27/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED No. 23-40385 March 27, 2024

Summary Calendar

Lyle W. Cayce ____________ Clerk

Jewell Thomas,

Plaintiff—Appellant, versus

Andrew Nino; Gage Rivas; Matthew Herrera; Elbert Holmes; Issac Kwarteng; Bryan Collier,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:22-CV-252

______________________________

Before Barksdale, Graves, and Engelhardt, Circuit Judges.

Per Curiam:*

Proceeding in forma pauperis (IFP), Jewell Thomas, Texas prisoner # 02350417, contests the dismissal of his action for which he proceeded pro se in district court, against several prison employees. When Thomas filed his notice of appeal and moved for leave to proceed IFP, he had, on at least three Case: 23-40385 Document: 58-1 Page: 2 Date Filed: 03/27/2024

No. 23-40385 prior occasions, 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. See Thomas v. Carter, No. 2:22-cv-133 (S.D. Tex. Nov. 1, 2022); Thomas v. Sanchez, No. 2:22-cv-129 (S.D. Tex. Nov. 17, 2022); Thomas v. Samuel, No. 2:22-cv-158 (S.D. Tex. Feb. 3, 2023).

He is therefore prevented from proceeding IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g) (outlining IFP three-strike rule). Thomas does not allege, and the record does not show, he was under imminent danger of serious physical injury when he filed his notice of appeal or his IFP motion at issue. See id. Accordingly, the district court improvidently granted him leave to proceed IFP on appeal.

If he chooses to reinstate his appeal, Thomas has 30 days from the date of this opinion to pay the full appellate filing fee to the clerk of the district court.

SECTION 1915(g) BAR IMPOSED; IFP DECERTIFIED; APPEAL DISMISSED.