* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30834

Summary Calendar

CURTIS L PRUITT

Plaintiff-Appellant

v.

HARRIS HATCHET, RAYMOND SMITH, OFFICER HURLEY; UNKNOWN

DEFENDANTS; DUSTIN DUBROC; D PRUETT

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:03-CV-2221

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Curtis L. Pruitt, federal prisoner # 21088-044, has filed a motion for leave

to proceed in forma pauperis (IFP) on appeal from the district court’s judgment

dismissing his civil rights complaint and granting the defendants’ summaryjudgment motion. By moving for leave to proceed IFP, Pruitt is challenging the

district court’s certification that his appeal was not taken in good faith. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 05-30834

2

Pruitt argues that the district court failed to consider the merits of his

claims. The record reflects that the district court considered at length Pruitt’s

claims of excessive force. He also argues that the district court failed to consider

the merits of his written objections to summary judgment, which were dated

July 11, 2005. There was no error, however, as those objections were not filed

until the complaint had been dismissed and Pruitt’s motion for reconsideration

had been denied.

Pruitt contends that the district court erred in concluding that the

defendants did not use unnecessary or unreasonable force because there was a

genuine issue of material fact as to whether he offered any resistance to the

guards. We review a district court’s ruling on a motion for summary judgment

de novo. Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). In this case,

summary judgment was appropriate because the summary-judgment evidence

demonstrated that Pruitt was handcuffed during a shakedown of his cell. When

Pruitt saw officer Raymond Smith handling his legal mail he yelled to Smith.

Receiving no response, Pruitt broke away from Dustin Dubroc, the officer who

was attending him, and began to move toward Smith. Although in his unsworn

affidavit Pruitt denied having resisted Dubroc, he alleged in his complaint that

he attempted to move closer to Smith despite the factthat Dubroc was physically

restraining him. Pruitt was pushed to the ground, and officers held him down

until additional restraints in the form of shackles were in place. Pruitt’s

characterization of his actions as peaceful and respectful does not negate the fact

that he tried to walk away from the officer that was restraining him in order to

approach Smith during the shakedown. He has not shown the existence of any

genuine issue of material fact in this regard. The summary-judgment evidence

supports the district court’s finding that the use of force in this instance was not

unnecessary or unreasonable. See Baldwin v. Stalder, 137 F.3d at 839, 841 (5th

Cir. 1998).
No. 05-30834

3

Pruitt’s argument that no injury is necessary to prevail on his excessiveforce claims is frivolous. A valid Eighth Amendment claim for excessive use of

force must be supported by a physical injury that is more than de minimis but

that need not be significant. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997). The district court here acknowledged Pruitt’s complaints of neck and

back pain, but found that any injury sustained here was de minimis as there

were not even any bruises or contusions. 

Pruitt argues that he should have been allowed to present evidence after

his case was dismissed but before the district court certified that his appeal was

not taken in good faith. He also argues that the district court erred in denying

his discovery motion. As that motion was directed to the district court and not

to the defendants, there was no error. These arguments are frivolous.

Pruitt has failed to show that his appeal involves “legal points arguable on

their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983) (internal quotation marks and citation omitted). His motion to

proceed IFP on appeal is therefore denied, and the appeal is dismissed as

frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

Our dismissal of this appeal as frivolous counts as a strike for purposes of

28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.

1996). Pruitt has accumulated at least one other strike. See Pruitt v. Young, No.

2:05-cv-71438-VAR-WC (E.D. Mich. May 25, 2005) (IFP civil-rights complaint

dismissed for failure to state a claim). Pruitt is warned that if he accumulates

three strikes, he will be barred under § 1915(g) from proceeding IFP in any civil

action or appeal while he is detained or incarcerated in any facility unless he is

under imminent danger of serious physical injury. Pruitt should review any

pending matters to insure that none is frivolous.

MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.