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,

Defendants-Appellees

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 claims of excessive force against defendants Captain 

Christopher Holman, Officer Derek W. Light, and Sergeant Robert L. Taylor,

in accordance with the jury’s verdict. He asserts that the transcript is 

 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 27, 2017

Lyle W. Cayce

Clerk

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No. 16-41461

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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 applied; 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 erred in refusing to allow the introduction 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) provides, 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 the 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 burden 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); 5TH CIR. 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 

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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.

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