    Case: 10-50526 Document: 00511387398 Page: 1 Date Filed: 02/18/2011




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                               FILED
                                                            February 18, 2011
                              No. 10-50526
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk




CLARE BETH MOORE,

                                         Plaintiff-Appellant,

versus

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division;
WARDEN GILBERT CAMPUZANO; BRUCE ARMSTRONG; L. S. CARMONA;
RITA THOMAS; ANGELA BURDETTE;
JUDY SCOTT, Warden, Lane Murray Unit; LORI L. WILLS;
MAJOR SUZANNE HENSON, Major, Lane Murray Unit;
CAPTAIN JANET SHEDD;
SYLVIA STOKES, Lane Murray Craft Shop Supervisor,

                                         Defendants-Appellees.




                Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 6:08-CV-205
     Case: 10-50526 Document: 00511387398 Page: 2 Date Filed: 02/18/2011

                                       No. 10-50526

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Clare Moore moves to proceed in forma pauperis (“IFP”) on appeal of the
dismissal of her 42 U.S.C. § 1983 complaint. By filing such a motion, Moore is
challenging the district court’s certification, pursuant to 28 U.S.C. § 1915(a)(3)
and Federal Rule of Appellate Procedure 24(a), that any appeal would not be
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
       In her complaint, Moore alleged that the defendants conspired with prison-
ers and guards at the Lane Murray Unit of the Texas Department of Criminal
Justice (“TDCJ”) to retaliate against her for exercising her First Amendment
right to seek redress of grievances and her Sixth Amendment right of access to
the courts; that TDCJ officials had retaliated against her for those same reasons
by denying her a legal lockbox; and that TDCJ officials were conspiring to de-
prive prisoners of adequate sleep. The district court dismissed the complaint un-
der 28 U.S.C. § 1915(e)(2)(B)(i) & (ii) after determining that Moore’s allegations,
considered individually, failed to state a claim upon which relief could be grant-
ed, and, considered as a whole, were so fantastic that they rose to the level of
frivolousness. If a district court dismisses a complaint both as frivolous and for
failing to state a claim, this court reviews the decision de novo. Samford v. Dret-
ke, 562 F.3d 674, 678 (5th Cir. 2009).
       In her IFP motion, Moore reiterates the merits of her § 1983 claims. She
provides no argument to controvert the district court’s determination that she
failed to allege a claim of conspiracy or retaliation upon which relief could be
granted. Nor has she controverted the determination that her allegations were
so fanciful as to be plainly baseless. See Denton v. Hernandez, 504 U.S. 25, 32


       *
         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.

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                                  No. 10-50526

(1992); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Cinel v. Con-
nick, 15 F.3d 1338, 1343 (5th Cir. 1994). Moreover, she has not shown that the
district court erred by denying leave to amend her complaint to raise additional
claims of conspiracy and retaliation. Any amendment would have been futile.
See Spotts v. United States, 613 F.3d 559, 573 (5th Cir. 2010). We will not con-
sider Moore’s claim that she is currently being denied access to the courts, be-
cause it was not raised in the district court. See id. at 569-70.
      Moore has not demonstrated that she will raise a nonfrivolous issue on
appeal. See § 1915(a); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Ac-
cordingly, the motion to proceed IFP is DENIED. Because the appeal is frivo-
lous, it is DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
      At the time Moore filed her motion to proceed IFP on appeal, she had ac-
cumulated one strike for purposes of § 1915(g) based on the dismissal of a civil
rights action for failure to state a claim upon which relief could be granted. See
Moore v. Scott, No. 6:00-CV-309, at 1 (W.D. Tex. Dec. 3, 2001). The district
court’s dismissal of the instant case as frivolous and for failure to state a claim
counts as an additional strike for purposes of § 1915(g), as does this court’s dis-
missal of this appeal as frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Because Moore now has accumulated at least three strikes for
purposes of § 1915(g), she hereby is barred from proceeding IFP in any civil ac-
tion or appeal filed while she is in prison unless she “is under imminent danger
of serious physical injury.” § 1915(g).




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