IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40550

Summary Calendar

JOHN CLOUD,

Plaintiff-Appellant

v.

KISHA STOTTS; JODY HEFNER; TRAVIS MORRIS,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:10-CV-650

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

John Cloud, Texas prisoner # 749521, moves for leave to proceed in forma

pauperis (IFP) on appeal. The district court dismissed Cloud’s civil rights

complaint under the three-strikes provision of 28 U.S.C. § 1915(g), determining

that Cloud had not made a showing that he was in imminent danger of serious

physical injury, and certified that, for the same reasons, Cloud’s appeal was not

taken in good faith.

United States Court of Appeals

Fifth Circuit

F I L E D

December 29, 2011

Lyle W. Cayce

Clerk

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.

Case: 11-40550 Document: 00511709792 Page: 1 Date Filed: 12/29/2011
No. 11-40550

By his motion, Cloud is challenging the district court’s certification. 

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into a

litigant’s good faith “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). His assertion that § 1915(g) is unconstitutional

because it seeks to chill a prisoner’s access to the courts is without merit. See

Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997).

Our review of the cases relied upon by the district court confirms that

Cloud had at least three prior civil rights complaints or appeals dismissed as

frivolous or for failure to state a claim and, thus, he has three “strikes.” See

§ 1915(g); see also Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996);

Cloud v. Webb, 54 F. App’x 405 (5th Cir. 2002) (affirming dismissal as frivolous

of civil rights complaint); Cloud v. Webb, 165 F.3d 23 (5th Cir. 1998) (dismissing

as frivolous appeal following dismissal as frivolous of civil rights complaint).

Cloud does not provide any details of the confrontation with or threats

made by another inmate allegedly at the behest of one of the defendants. Even

with the benefit of liberal construction, Cloud’s bare assertions that he has been

threatened at unspecified dates in the past by inmates who have beaten other

inmates at the direction of one of the defendants does not rise to the level of a

showing that he was in “imminent danger of serious physical injury” when he

filed his complaint. See § 1915(g); see also Baños v. O’Guin, 144 F.3d 883, 884-85

(5th Cir. 1998).

Because Cloud has failed to present a nonfrivolous issue regarding the

district court’s certification, his motion for leave to proceed IFP on appeal is

DENIED. See Howard, 707 F.2d at 220. As the facts surrounding Cloud’s

motion to proceed IFP are inextricably intertwined with the merits of this

appeal, the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 &

n.24; 5TH CIR. R. 42.2. Cloud is CAUTIONED that any future frivolous filings

will subject him to sanctions.

2

Case: 11-40550 Document: 00511709792 Page: 2 Date Filed: 12/29/2011