     Case: 11-40550     Document: 00511709792         Page: 1     Date Filed: 12/29/2011




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

                                                                            FILED
                                                                        December 29, 2011
                                     No. 11-40550
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN CLOUD,

                                                  Plaintiff-Appellant

v.

KISHA STOTTS; JODY HEFNER; TRAVIS MORRIS,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:10-CV-650


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        John Cloud, Texas prisoner # 749521, moves for leave to proceed in forma
pauperis (IFP) on appeal. The district court dismissed Cloud’s civil rights
complaint under the three-strikes provision of 28 U.S.C. § 1915(g), determining
that Cloud had not made a showing that he was in imminent danger of serious
physical injury, and certified that, for the same reasons, Cloud’s appeal was not
taken in good faith.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40550   Document: 00511709792      Page: 2   Date Filed: 12/29/2011

                                  No. 11-40550

      By his motion, Cloud is challenging the district court’s certification.
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into a
litigant’s good faith “is limited to whether the appeal involves ‘legal points
arguable on their merits (and therefore not frivolous).’” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). His assertion that § 1915(g) is unconstitutional
because it seeks to chill a prisoner’s access to the courts is without merit. See
Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997).
      Our review of the cases relied upon by the district court confirms that
Cloud had at least three prior civil rights complaints or appeals dismissed as
frivolous or for failure to state a claim and, thus, he has three “strikes.” See
§ 1915(g); see also Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996);
Cloud v. Webb, 54 F. App’x 405 (5th Cir. 2002) (affirming dismissal as frivolous
of civil rights complaint); Cloud v. Webb, 165 F.3d 23 (5th Cir. 1998) (dismissing
as frivolous appeal following dismissal as frivolous of civil rights complaint).
      Cloud does not provide any details of the confrontation with or threats
made by another inmate allegedly at the behest of one of the defendants. Even
with the benefit of liberal construction, Cloud’s bare assertions that he has been
threatened at unspecified dates in the past by inmates who have beaten other
inmates at the direction of one of the defendants does not rise to the level of a
showing that he was in “imminent danger of serious physical injury” when he
filed his complaint. See § 1915(g); see also Baños v. O’Guin, 144 F.3d 883, 884-85
(5th Cir. 1998).
      Because Cloud has failed to present a nonfrivolous issue regarding the
district court’s certification, his motion for leave to proceed IFP on appeal is
DENIED. See Howard, 707 F.2d at 220. As the facts surrounding Cloud’s
motion to proceed IFP are inextricably intertwined with the merits of this
appeal, the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 &
n.24; 5TH CIR. R. 42.2. Cloud is CAUTIONED that any future frivolous filings
will subject him to sanctions.

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