Biggerstaff v. Griffis

Case: 26-50157 Document: 34-1 Page: 1 Date Filed: 08/26/2026

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 26-50157 August 26, 2026 Summary Calendar Lyle W. Cayce ____________ Clerk Dustin Allen Biggerstaff, Plaintiff—Appellant, versus Mike Griffis, Sheriff; FNU Adeluola, Sergeant, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 7:25-CV-440 ______________________________ Before Graves, Wilson, and Ramirez, Circuit Judges.

Per Curiam: * Dustin Allen Biggerstaff, a Texas prisoner currently held in Ector County Detention Center, moves for leave to proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. § 1983 suit alleging that the defendants violated his civil rights by failing to provide him with a bottom bunk despite his medical need for such accommodation. The district court Case: 26-50157 Document: 34-1 Page: 2 Date Filed: 08/26/2026

No. 26-50157 dismissed the suit without prejudice for failure to exhaust his administrative remedies.

Through his IFP motion, Biggerstaff challenges the district court’s determination that the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry, therefore, “is limited to whether the appeal involves ‘legal points arguable on their merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).

Biggerstaff makes no substantive attempt to address the district court’s reasons for dismissing his suit. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). He thus fails to identify a nonfrivolous issue for appeal. See Howard, 707 F.2d at 220.

We DENY the IFP motion and DISMISS the appeal as frivolous.

See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2. We likewise DENY Biggerstaff’s motion for appointment of counsel.

Our dismissal of the appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 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). Considering Biggerstaff’s other three prior strikes, this court has imposed a § 1915(g) pleading bar. See Biggerstaff v. Brown, No. 26-50108; 28 U.S.C. § 1915(g). We reiterate that Biggerstaff is BARRED from proceeding IFP in any civil action or appeal filed in a court of the United States while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. We again WARN Biggerstaff 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 Case: 26-50157 Document: 34-1 Page: 3 Date Filed: 08/26/2026

No. 26-50157 sanctions, and we again DIRECT him to review all pending matters and move to dismiss any that are frivolous, repetitive, or otherwise abusive.