     Case: 17-10775      Document: 00514464225         Page: 1    Date Filed: 05/08/2018




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

                                                                                  FILED
                                      No. 17-10775                             May 8, 2018
                                                                             Lyle W. Cayce
WILLIE ARTHUR MILTON,                                                             Clerk


                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:15-CV-35


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Willie Arthur Milton, Texas prisoner # 561014, moves for a certificate of
appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 application
challenging a prison disciplinary proceeding that resulted in the temporary
loss of recreation and commissary privileges. Milton also moves for in forma
pauperis (IFP) status. The district court construed some of Milton’s claims as
arising under 42 U.S.C. § 1983 and dismissed those claims as barred under 28


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10775     Document: 00514464225      Page: 2   Date Filed: 05/08/2018


                                  No. 17-10775

U.S.C. § 1915(g) because Milton had brought at least three civil actions or
appeals that had been dismissed as frivolous or for failure to state a claim.
      Milton need not overcome the § 1915(g) bar in order to appeal the denial
of § 2254 relief, see Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997), but
he does need a COA for this purpose, see 28 U.S.C. § 2253(c). To obtain a COA,
a movant must make “a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). If a district court has denied the constitutional claims on
the merits, the movant “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Milton has failed to make such a
showing. We therefore deny a COA.
      The § 1915(g) bar applies to his remaining claims. A prisoner may not
proceed IFP in a civil action or appeal a judgment in a civil action or proceeding
if he has on three or more prior occasions, while incarcerated or detained in a
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.”     § 1915(g); see Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). We conclude that Milton’s allegations are
insufficient to overcome the § 1915(g) bar. See Choyce v. Dominguez, 160 F.3d
1068, 1070 (5th Cir. 1998). We deny Milton’s IFP motion. The IFP decision is
inextricably intertwined with the merits of the appeal of the district court’s
application of the § 1915(g) bar. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24
(5th Cir. 1997). Because the appeal presents no nonfrivolous issue, we dismiss
the appeal as frivolous. See 5TH CIR. R. 42.2.
      COA DENIED; IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.




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