     Case: 16-10238      Document: 00514007033         Page: 1    Date Filed: 05/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-10238                                FILED
                                                                              May 25, 2017
                                                                             Lyle W. Cayce
THOMAS SAWYER,                                                                    Clerk

                                                 Plaintiff-Appellant

v.

CARYN DIE; TAMMY MESSIMER; LAWRENCE DOTY; DANIEL A. LAKIN;
JOSEPH C. BOYLES; ET AL,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:15-CV-92


Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Thomas Sawyer, Texas prisoner # 579557, moves for leave to proceed in
forma pauperis (IFP) on appeal from the dismissal without prejudice of his civil
rights lawsuit.     Sawyer has three strikes under 28 U.S.C. § 1915(g) and
therefore may not proceed IFP in a civil action or in an appeal of a judgment
in a civil action unless he is “under imminent danger of serious physical




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10238

injury.” § 1915(g). Also, the district court certified that Sawyer’s appeal was
not taken in good faith for the reasons set forth in the order of dismissal.
      The district court’s order of dismissal noted that Sawyer is subject to
§ 1915(g) and to a court-ordered sanction from the Southern District of Texas
that requires him to obtain permission from a judicial officer before filing
complaints, pleadings, or other documents. The district court denied Sawyer
permission to proceed and dismissed the case without prejudice pursuant to
§ 1915(g) and the court-ordered sanction after finding that Sawyer failed to
allege sufficient facts to state a claim that he was in imminent danger of
serious physical injury and likewise failed to state a claim for violation of his
civil rights.
      By moving to proceed IFP in this court, Sawyer is challenging the district
court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
The determination whether a prisoner is under “imminent danger” must be
made at the time the prisoner seeks to file his suit in district court or to proceed
with his appeal, or when he files a motion to proceed IFP. Baños v. O’Guin,
144 F.3d 883, 885 (5th Cir. 1998).
      Sawyer’s IFP application shows that he qualifies financially to proceed
IFP. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948).
In addition, his allegations regarding the dislocation of his shoulder warrant a
determination that he was under imminent danger of serious physical injury,
as required to proceed under § 1915(g). Further, Sawyer’s factual allegations
regarding the dislocation of his shoulder state at least a plausible claim of
excessive       force   amounting   to   unconstitutionally   cruel   and   unusual
punishment. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); McCreary v.
Massey, 366 F. App’x 516, 519 (5th Cir. 2010). We do not reach any of his other
claims.



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                                 No. 16-10238

      Accordingly, Sawyer’s motion for leave to proceed IFP on appeal is
GRANTED. See § 1915(g); see also Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Sawyer’s motion for a ruling on his IFP motion is DENIED as moot.
      Where, as here, the merits of an appeal “are so intertwined with the [IFP]
certification decision as to constitute the same issue,” we may determine both.
Baugh, 117 F.3d at 202.       Therefore, we dispense with further briefing,
VACATE the district court’s order, and REMAND the case to the district court
for further proceedings consistent with this opinion. See Clark v. Williams,
693 F.2d 381, 382 (5th Cir. 1982). The case remains subject to the provisions
of § 1915(e)(2), and we take no position on the ultimate merits of any of
Sawyer’s claims or any defenses that might be raised.




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