Revised December 3, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41292

_____________________

CLIFTON RAY CHOYCE,

Plaintiff-Appellant,

v.

DANIEL DOMINGUEZ, Sergeant; LUIS D GUTIERREZ; 

DWIGHT F MORRIS, JR,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

December 2, 1998

Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Clifton Ray Choyce, Jr., a Texas prisoner, appeals the

magistrate judge’s order dismissing his pro se in forma pauperis

civil rights suit, 42 U.S.C. § 1983, pursuant to the “three

strikes rule” of the Prison Litigation Reform Act, 28 U.S.C.

§ 1915(g). We vacate the magistrate judge’s order granting IFP

status on appeal and remand for reconsideration in the light of

this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND
2

Plaintiff-appellant Clifton Ray Choyce, Jr., is a state

prisoner incarcerated at the McConnell Unit of the Texas

Department of Criminal Justice-Institutional Division at

Beeville, Texas. In a pro se complaint filed on June 16, 1997,

Choyce alleged the following: On May 7, 1997, he was returning

to his cell from the dining hall when he passed defendantsappellees Luis D. Gutierrez and Dwight F. Morris, Jr.,

correctional officers at the McConnell Unit. Morris said to

Choyce, “I’m gonna beat your lawsuit filing ass when I get

another chance.” Choyce asked Morris whether he was threatening

retaliation for a lawsuit that Choyce had filed against him. 

Morris responded, “You know I will. Fuck that lawsuit. The

court ain’t gonna do nothing but throw that shit out. I can do

what I want to do.” At that point, defendant-appellee Daniel

Dominguez, a sergeant at the McConnell Unit, approached Choyce

from behind, grabbed his left arm, ordered Gutierrez and Morris

to throw him on the floor, and told him, “I told your black ass

we gonna get you. You’re filing to[o] much shit.” Gutierrez

then grabbed Choyce around the waist, and Morris struck him in

the face with his fist and threw him to the ground. Morris then

poked his finger into Choyce’s right eye and twice slammed the

right side of Choyce’s head on the concrete floor. Dominguez

struck Choyce’s head with a pair of handcuffs and twisted

Choyce’s left arm while his knee was in Choyce’s back. Choyce

suffered a swollen and bruised right cheek and right wrist, knots
3

and bruises on the right side of his head, a bruised left wrist,

and a skinned left elbow.

Choyce claimed that the May 7, 1997 incident was only one

episode in an ongoing pattern of threats and violence designed to

retaliate against him for filing lawsuits protesting his

treatment in prison. For example, he asserted that on September

11, 1996, when he asked Dominguez to stop two officers from

threatening him, Dominguez replied, “Shut the fuck up! I’ll let

them beat your ass, I’m ti[r]ed of your shit too!” On April 2,

1997, Choyce claimed, Dominguez ordered two other officers to

handcuff and put him on the floor, although Choyce had engaged in

no wrongful conduct. Moreover, two days after the May 7, 1997

assault, Morris allegedly told Choyce, “I didn’t get your ass

like I wanted to. You won’t survive next time I get you.” On

May 14, 1997, Morris told Choyce, “Just like the first, you

didn’t fight back,” and Dominguez said, “None of the smart assies

[sic] fight back. We’ll get him again if he keep filing shit. 

We get us one every day on my shift.”

Choyce filed an action in the United States District Court

for the Southern District of Texas, Corpus Christi Division, for

damages and injunctive relief under 42 U.S.C. § 1983, alleging

unnecessary and excessive use of force in violation of the Eighth

Amendment and retaliation for exercising his right to free access

to the courts in violation of the First and Fourteenth

Amendments. He also alleged the torts of assault and battery. 
 

1 See Choyce v. Perez, No. C-96-CV-259 (S.D. Tex. Oct. 9,

1996); Choyce v. Doss, No. H-94-CV-2147 (S.D. Tex. Jan. 31,

1996); Choyce v. Thaler, No. H-95-CV-3677 (S.D. Tex. Dec. 12,

1995); Choyce v. Dyers, No. H-95-CV-316 (S.D. Tex. Aug. 10,

1995), aff’d, 77 F.3d 474 (5th Cir. 1995). Choyce does not

challenge the magistrate judge’s taking judicial notice that he

has had four suits dismissed as frivolous or for failure to state

a claim in the United States District Court for the Southern

District of Texas while he was a prisoner.

 

2 In fact, only five months had elapsed between the

incident giving rise to the complaint and the magistrate judge’s

order of dismissal. 

4

Choyce consented to proceed before a magistrate judge. The

defendants were served, filed an answer, and also consented to

proceed before the magistrate judge.

Title 28, United States Code Section 1915 governs federal

proceedings in forma pauperis (IFP). Section 1915(g) provides:

In no event shall a prisoner bring a civil action or appeal

a judgment in a civil action or proceeding under this

section if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an

action or appeal in a court of the United States that was

dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of serious

physical injury.

28 U.S.C. § 1915(g). Noting that Choyce had had four suits

dismissed as frivolous or for failure to state a claim in the

district court,1 the magistrate judge concluded that Choyce was

prohibited from bringing the instant complaint IFP unless he was

in imminent danger of serious physical injury. She found that

the incident giving rise to the injury had occurred seventeen

months before2 and that there was no indication of present danger
5

to Choyce. Accordingly, she dismissed the complaint without

prejudice pursuant to 28 U.S.C. § 1915(g). Choyce timely

appealed, and the magistrate judge granted leave to proceed IFP

on appeal.

II. DISCUSSION

On appeal, Choyce contends that the magistrate judge erred

in finding that he was not under imminent danger of serious

physical injury. He also argues that 28 U.S.C. § 1915(g) is

unconstitutionally vague because it fails to define what it means

to be “under imminent danger of serious physical injury.” We do

not reach these issues, however, because we find that we must

vacate the magistrate judge’s grant of IFP status on appeal.

In Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998), a

case decided after the magistrate judge’s determination at issue

here, we held that the determination as to whether a prisoner is

in “imminent danger” must be made as of the time that he seeks to

file IFP his complaint or notice of appeal. But see Gibbs v.

Roman, 116 F.3d 83, 86 (3d Cir. 1997) (holding that an inmate

filing a complaint pursuant to § 1915(g) must allege imminent

danger at the time of the alleged incident that serves as the

basis of the complaint rather than at the time the complaint was

filed). In Baños, the district court dismissed the prisonerlitigant’s § 1983 action pursuant to § 1915(g) because he had

filed at least four prior actions that had been dismissed as

frivolous and had not alleged that he was in imminent danger of
 

3 Neither we nor our sister circuits have articulated the

basis for our jurisdiction to review grants of leave to proceed

IFP on appeal. However, we have held, without addressing its

jurisdiction to do so, that a court of appeals may review the

denial of leave to appeal IFP, see Baugh v. Taylor, 117 F.3d 197,

199-202 (5th Cir. 1997), and at least one other circuit has held

that a denial of IFP status is reviewable under 28 U.S.C. § 1291

as a final decision of a district court, see, e.g., O’Keefe v.

Wilson, No. 96-56203, 1998 WL 476433, at *1 (9th Cir. 1998)

(citing O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990)). 

Despite the lack of explicit authority for our jurisdiction to

review grants of leave to appeal IFP, we revoked in Baños the

district court’s grant of leave to proceed IFP on appeal after

determining that the district court examined as of the wrong time

the prisoner-appellant’s claim that he was in imminent danger of

serious physical injury. See Baños, 144 F.3d 884-85. We did not

set out the jurisdictional basis for our review of the district

court’s order. See id.

6

serious bodily injury. See Baños, 144 F.3d at 884. The prisoner

filed a notice of appeal and an application to proceed IFP on

appeal, which the district court granted. See id. The Fifth

Circuit revoked his IFP status and dismissed his appeal because

he did not establish or even allege that he was under imminent

danger of serious physical injury at the time that he filed his

notice of appeal. See id. at 885. 

We first consider whether Choyce may proceed IFP with this

appeal.3 Baños held that in reviewing a grant of leave to appeal

IFP, the appellate court must determine if danger exists at the

time the plaintiff seeks to proceed with his appeal or files a

motion to proceed IFP. See id. at 884-85. The magistrate judge

in this case concluded that Choyce could proceed IFP on appeal,

based presumably on his allegation in his Motion to Proceed In

Forma Pauperis that he is still under imminent danger of serious
 

4 The magistrate judge may also wish then to reexamine her

ruling dismissing the complaint insofar as it is based on a

determination that the relevant time for assessing imminent

danger was the date of her dismissal order rather than the date

of filing the complaint as Baños requires, see 144 F.3d at 884-

85, as well as in light of the computation error observed in note

2 above.

7

physical injury. We cannot say with certainty that the

magistrate judge erred, but there is something of an incongruity

between the magistrate judge’s finding that Choyce was not in

imminent danger of serious physical injury at the time his

lawsuit was dismissed and the magistrate judge’s implicit

determination that Choyce was in such danger when he filed his

motion to proceed IFP on appeal. See Baños, 144 F.3d at 884

(noting that the lower court’s “determination that § 1915(g) bars

[the prisoner] from proceeding IFP in a civil action seems

incongruous with the grant of leave to appeal IFP”). Of course,

we recognize that these findings are not necessarily

inconsistent, because they were made as of different points in

time. Nevertheless, the magistrate judge should, on remand,

address the potential inconsistency between her rulings.4

III. CONCLUSION

Accordingly, we VACATE the magistrate judge’s order granting

IFP status on appeal and REMAND for reconsideration in the light

of this opinion.