### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30908 Summary Calendar

KENNETH SPRADLEY, Plaintiff-Appellant

v. J. TIRC U I T , Warden; UNKNOWN CHILDS, Ex. Captain; CRAIG W HITE, Sergeant, Defendants-Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:11-CV-378

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Kenneth Spradley, Louisiana prisoner # 10 1 5 2 6, moves this court to proceed in forma pauperis (IFP) in this appeal from the district c o urt’s dismissal of his 42 U.S.C. § 1983 complaint. Spradley’s claims against Major Carl Thomas and Lieutenant D onald Johnson were dismissed for failure to state a claim. His claims against Warden J. Tircuit and C aptain Childs were dismissed w i t hout prejudice for f

ailure to serve th e d e f endants. Spradley does not c hallenge the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30908 Document: 00512202569 Page: 1 Date Filed: 04/09/2013No. 12-30908

district court’s dismissal of his claims against Thomas and Johnson. Nor does he challenge the dismissal w i t h o u t p r ejudice of his c laims against Tircuit and Childs. Therefore, any challenge to these rulings is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987). As to Spradley’s clai m s a g ainst Craig White, the district court granted summary judgment for White based on qualified i mmunity a nd dismissed the complaint. The district c ourt d e n ied Spradley’s request t o proceed IFP on appeal, certifying that the appeal was not taken in good faith. Spra d l e y ’ s I FP motion i s a c hallenge to the district court’s certification that his a ppeal is not taken in good faith. Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). Spradley a rgues that the district court erred i n gr a nting summary judgment in favor of White. He contends that in granting summary judgment, the district court imp ermissibly made credibility determinations. He further asserts that the facts are in dispute and th at the disp u t e d issues involve material facts. This court reviews de novo a district court’s grant of s ummary judgment. Nickell v. Beau View of Biloxi, L.L.C. , 636 F.3d 752, 754 ( 5th Cir. 2011). “The court shall grant summary judgment i f the movant shows t h a t t here is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F E D
. R. C I V
. P. 56(a). Contrary to Spradley’s assertion, the district court did not make a credibility determination. Rather, the district court addressed the facts alleged

as disputed by Spradley, a nd evaluated the f acts as i f they were true. Viewing the f acts in the light most favorable to Spradley, there was no evidence to show that White was aware of a ny prior acrim o n y b e t w een the two inmates. Based

on the pleadings, affidavits, and other evidentiary d o cuments, the district court determined that the facts in dispute were not ma t e r i a l because they did not show th a t Wh i t e knew and disregarded an excessive risk to Spradley’s safety. See J ohnson v. J

ohnson , 385 F.3d 503, 524 (5th Cir. 2004). B ecause the disputed
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facts would not affect the outcome of the suit, the district court did n ot err in granting the motion. See Anderson v. Liberty L obby, Inc. , 477 U

. S

. 2 42, 248 (1986). Spradley has not shown that he will present a nonfrivolous issue on appeal. See Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP is denied a n d the appeal is dismissed as frivolous. See Baugh , 117 F.3d at 202 n.24; 5 T H C I R . R. 42.2. The dismissal of this appeal counts as one strike under 28 U.S.C. § 1915(g). See Adepegba v. H ammons , 103 F.3d 383, 387-88 (5th Cir. 1996). Spradley has two previous strikes. S pradley v . Batiste , No. 96-22-B-1 (M.D. La. Jan. 31, 1996); Spradley v. Andrews , No. 04-30803 (June 21, 2005). Spradley has

now accumulated three strikes; therefore, he is barred from proceeding in forma pauperis in any c ivil a ction or appeal filed while he is incarcerated or d etained in any facility unl e s s he is under imminent danger o f serious physical injury. See§ 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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