### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 41461

SHERWAYNE D. FRAZIER , Plaintiff

- Appellant

v.
TODD FOXWORTH, Warden, Michael Unit; CHRISTOPHER HOLMAN, Captain, Michael Unit; ROBERT C. BUSH, JR., Lieutenant, Michael Unit; DEREK W. LIGHT, Correctional Officer 4, Michael Unit; ROBERT L. TAYLOR, Sergeant, Michael Unit , Defendant s
- Appellee s

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:15

- CV

- 669

Before JOLLY, SMITH and HAYNES, Circuit Judges. PER CURIAM: * Sherwayne D. Frazier, Texas prisoner # 1587204, has filed a motion to
obtain a trial transcript at the Government’s expense to appeal a judgment dismissing his claim s of excessive force against defendant s Captain Christopher Holman, Officer Derek W. Light, and Sergeant Robert L. Taylor , in accordance with the jury’s verdict

. He a sserts th at the transcript is

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 27, 2017 Lyle W. Cayce Clerk Case: 16-41461 Document: 00514172684 Page: 1 Date Filed: 09/27/2017No. 16

- 41461

2 necessary for him to pursue his appeal and that he cannot pay for the transcript. Frazier contends that his trial counsel rendered ineffective assistance; the magistrate judge erred in instructing the jury regarding the law to be appl ied; he should have been administered a polygraph examination to prove his honesty, as all the defense witnesses committed perjury; a witness should have been but was not subpoenaed to testify at trial; and the magistrate judge err ed in refus ing to allow t he introducti on of the defendants ’ disciplinary files as proof of character. To obtain a transcript at government expense, Frazier must satisfy the criteria of 28 U.S.C. § 753(f). See Harvey v. Andrist , 754 F.2d 569, 571 (5th Cir. 1985). Section 753(f) p rovides, in part, that the United States shall pay the fees for transcripts furnished in civil proceedings to persons permitted to appeal in forma pauperis (IFP) if the trial judge or a circuit judge certifies that the appeal is not frivolous but presents a substantial question. § 753(f). The moving party must also establish that the transcript is necessary for proper disposition of the appeal. Harvey , 754 F.2d at 571.
The magistrate judge granted Frazier leave to appeal IFP but denied his motion for th e production of a transcript at the Government’s expense. Frazier has not alleged a particularized need for the jury trial transcript or shown that his appeal is not frivolous and presents a substantial question. Accordingly, he has not satisfied his bur den for obtaining a transcript at government

expense. See § 753(f); Harvey , 754 F.2d at 571. Therefore, his motion is denied, and the appeal is dismissed as frivolous. See Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983); 5 TH C IR

. R . 42.2. The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 387

- 88 (5th Cir. 1996). Frazier is cautioned that once he accumulates three strikes, he may not Case: 16-41461 Document: 00514172684 Page: 2 Date Filed: 09/27/2017No. 16

- 41461

3 proceed 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 § 1915(g). MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED. Case: 16-41461 Document: 00514172684 Page: 3 Date Filed: 09/27/2017