     Case: 17-20672      Document: 00514588701         Page: 1    Date Filed: 08/07/2018




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

                                                                                 FILED
                                      No. 17-20672                          August 7, 2018
                                                                            Lyle W. Cayce
NORMAN LEE AGNEW,                                                                Clerk


                                                 Plaintiff-Appellant

v.

CAPTAIN PHILLIP GRAHAM; LIEUTENANT T. BALZEN; STATE OF
TEXAS; WARDEN JOLLY; MAJOR GORDON,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2706


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Norman Lee Agnew, formerly Tarrant County inmate # 0872250 (now
Texas prisoner # 2172850), moves for leave to proceed in forma pauperis (IFP)
on appeal from the dismissal of his 42 U.S.C. § 1983 complaint as frivolous. He
also has filed a motion for civil removal. The district court concluded that
Agnew’s complaint was time barred. Agnew’s request for IFP status was
denied, and the district court certified that an appeal would not be taken in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20672

good faith. By moving to proceed IFP on appeal, Agnew challenges the district
court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Agnew does not challenge the applicability of a two-year limitations
period; nor does he deny that the alleged assault occurred in 2013, that his
alleged wrongful confinement ended in August 2014, and that his § 1983
complaint was filed in July 2017. Instead, he argues that his complaint should
be deemed timely because tolling of the limitations period is warranted under
the doctrine of contra non valentem.        Assuming arguendo that the Texas
statute of limitations could be tolled under that doctrine, Agnew does not
identify any action of the defendants that prevented his timely filing, nor does
he explain how he was prevented from timely filing his complaint. The district
court did not err or abuse its discretion in dismissing Agnew’s complaint as
frivolous because it is time barred.
      This appeal lacks arguable legal merit and is, therefore, frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Agnew’s motion to proceed
IFP is DENIED, and we DISMISS his appeal as frivolous. See Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2. Because his request to be held in a federal facility
is premised on the pendency of the instant action, Agnew’s motion for civil
removal also is DENIED.
      The district court’s dismissal of Agnew’s complaint and the dismissal of
this appeal as frivolous count as two strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). A prior § 1983
action filed by Agnew was dismissed as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b). See Agnew v. City of Fort Worth, Tex.,
No. 4:17-CV-941 (N.D. Tex. Dec. 15, 2017). That dismissal also counts as a
strike under § 1915(g). See Adepegba, 103 F.3d at 387-88. Because he now has
three strikes, Agnew is BARRED from proceeding IFP in any civil action or



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                                 No. 17-20672

appeal filed in a court of the United States while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g); Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009).




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