     Case: 12-30908       Document: 00512202569         Page: 1     Date Filed: 04/09/2013




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

                                                                            FILED
                                                                            April 9, 2013
                                     No. 12-30908
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KENNETH SPRADLEY,

                                                  Plaintiff-Appellant

v.

J. TIRCUIT, Warden; UNKNOWN CHILDS, Ex. Captain; CRAIG WHITE,
Sergeant,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-378


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Kenneth Spradley, Louisiana prisoner # 101526, moves this court to
proceed in forma pauperis (IFP) in this appeal from the district court’s dismissal
of his 42 U.S.C. § 1983 complaint. Spradley’s claims against Major Carl Thomas
and Lieutenant Donald Johnson were dismissed for failure to state a claim. His
claims against Warden J. Tircuit and Captain Childs were dismissed without
prejudice for failure to serve the defendants. Spradley does not challenge the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30908     Document: 00512202569     Page: 2   Date Filed: 04/09/2013

                                  No. 12-30908

district court’s dismissal of his claims against Thomas and Johnson. Nor does
he challenge the dismissal without prejudice of his claims against Tircuit and
Childs. Therefore, any challenge to these rulings is abandoned. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      As to Spradley’s claims against Craig White, the district court granted
summary judgment for White based on qualified immunity and dismissed the
complaint. The district court denied Spradley’s request to proceed IFP on
appeal, certifying that the appeal was not taken in good faith. Spradley’s IFP
motion is a challenge to the district court’s certification that his appeal is not
taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Spradley argues that the district court erred in granting summary
judgment in favor of White. He contends that in granting summary judgment,
the district court impermissibly made credibility determinations. He further
asserts that the facts are in dispute and that the disputed issues involve
material facts.
      This court reviews de novo a district court’s grant of summary judgment.
Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). “The
court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a).
      Contrary to Spradley’s assertion, the district court did not make a
credibility determination. Rather, the district court addressed the facts alleged
as disputed by Spradley, and evaluated the facts as if they were true. Viewing
the facts in the light most favorable to Spradley, there was no evidence to show
that White was aware of any prior acrimony between the two inmates. Based
on the pleadings, affidavits, and other evidentiary documents, the district court
determined that the facts in dispute were not material because they did not
show that White knew and disregarded an excessive risk to Spradley’s safety.
See Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004). Because the disputed

                                        2
    Case: 12-30908    Document: 00512202569     Page: 3   Date Filed: 04/09/2013

                                 No. 12-30908

facts would not affect the outcome of the suit, the district court did not err in
granting the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
      Spradley has not shown that he will present a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the
motion for leave to proceed IFP is denied and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      The dismissal of this appeal counts as one strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Spradley has two previous strikes. Spradley v. Batiste, No. 96-22-B-1 (M.D. La.
Jan. 31, 1996); Spradley v. Andrews, No. 04-30803 (June 21, 2005). Spradley has
now accumulated three strikes; therefore, he is barred from proceeding in forma
pauperis in any civil action or appeal filed while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.




                                       3
