     Case: 15-41075      Document: 00513854040         Page: 1    Date Filed: 01/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                    No. 15-41075
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                         January 30, 2017
                                                                             Lyle W. Cayce
ERNEST MARTIN,                                                                    Clerk


                                                 Plaintiff-Appellant

v.

LOLITA RAMOS; SUMMER TANNER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:15-CV-171


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis (IFP), Ernest Martin, Texas
prisoner # 1042741, appeals the dismissal of his 42 U.S.C. § 1983 complaint
pursuant to 28 U.S.C. § 1915. Martin was convicted of aggravated kidnapping,
was determined to be a habitual offender, and was sentenced to 40 years in
prison.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41075

      In his § 1983 complaint, Martin alleged that the defendants denied him
access to the courts by ignoring or refusing to comply with his requests and
motions for a copy of the documents and transcripts from his criminal case,
thereby interfering with his ability to file a state habeas application. Because
the district court dismissed the complaint both as frivolous and for failure to
state a claim, we apply the de novo standard of review. See Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005). A complaint is “frivolous if it does not have
an arguable basis in fact or law.” Brewster v. Dretke, 587 F.3d 764, 767 (5th
Cir. 2009). A complaint fails “to state a claim if the facts, taken as true, do not
state a claim that is plausible on its face.” Coleman v. Sweetin, 745 F.3d 756,
763 (5th Cir. 2014). Prisoners have a constitutionally protected right of access
to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). A prisoner must
show actual injury to prevail on a claim that he was denied access to the courts.
Lewis v. Casey, 518 U.S. 343, 349 (1996).
      As conceded by Martin, he previously was able to file two state habeas
applications challenging his conviction without the sought-after documents or
transcripts. The fact that he did not obtain the relief that he desired does not
support a denial-of-access-to-the-court claim. Crowder v. Sinyard, 884 F.2d
804, 814 (5th Cir. 1989), abrogated on other grounds by Horton v. California,
496 U.S. 128 (1990). As Martin has not alleged an actual injury, he cannot
state a claim of denial of access to the court. See Lewis, 518 U.S. at 349.
      The instant appeal is without arguable merit and, therefore, is dismissed
as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH
CIR. R. 42.2. The district court’s dismissal of his complaint and the dismissal
of this appeal as frivolous each count as a strike under § 1915(g). See Coleman
v. Tollefson, 135 S. Ct. 1759, 1761 (2015); Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Martin is cautioned that if he accumulates three strikes



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                                 No. 15-41075

under § 1915(g), he will not be able to proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is in
imminent danger of serious physical injury. See § 1915(g). Martin’s motion
for appointment of counsel is denied.
      APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION
FOR APPOINTMENT DENIED.




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