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

                                                                  FILED
                                                              September 16, 2008
                                No. 05-30834
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

CURTIS L PRUITT

                                           Plaintiff-Appellant

v.

HARRIS HATCHET, RAYMOND SMITH, OFFICER HURLEY; UNKNOWN
DEFENDANTS; DUSTIN DUBROC; D PRUETT

                                           Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:03-CV-2221


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Curtis L. Pruitt, federal prisoner # 21088-044, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s judgment
dismissing his civil rights complaint and granting the defendants’ summary-
judgment motion. By moving for leave to proceed IFP, Pruitt is challenging the
district court’s certification that his appeal was not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 05-30834

      Pruitt argues that the district court failed to consider the merits of his
claims. The record reflects that the district court considered at length Pruitt’s
claims of excessive force. He also argues that the district court failed to consider
the merits of his written objections to summary judgment, which were dated
July 11, 2005. There was no error, however, as those objections were not filed
until the complaint had been dismissed and Pruitt’s motion for reconsideration
had been denied.
      Pruitt contends that the district court erred in concluding that the
defendants did not use unnecessary or unreasonable force because there was a
genuine issue of material fact as to whether he offered any resistance to the
guards. We review a district court’s ruling on a motion for summary judgment
de novo. Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). In this case,
summary judgment was appropriate because the summary-judgment evidence
demonstrated that Pruitt was handcuffed during a shakedown of his cell. When
Pruitt saw officer Raymond Smith handling his legal mail he yelled to Smith.
Receiving no response, Pruitt broke away from Dustin Dubroc, the officer who
was attending him, and began to move toward Smith. Although in his unsworn
affidavit Pruitt denied having resisted Dubroc, he alleged in his complaint that
he attempted to move closer to Smith despite the fact that Dubroc was physically
restraining him. Pruitt was pushed to the ground, and officers held him down
until additional restraints in the form of shackles were in place. Pruitt’s
characterization of his actions as peaceful and respectful does not negate the fact
that he tried to walk away from the officer that was restraining him in order to
approach Smith during the shakedown. He has not shown the existence of any
genuine issue of material fact in this regard. The summary-judgment evidence
supports the district court’s finding that the use of force in this instance was not
unnecessary or unreasonable. See Baldwin v. Stalder, 137 F.3d at 839, 841 (5th
Cir. 1998).



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                                  No. 05-30834

      Pruitt’s argument that no injury is necessary to prevail on his excessive-
force claims is frivolous. A valid Eighth Amendment claim for excessive use of
force must be supported by a physical injury that is more than de minimis but
that need not be significant. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). The district court here acknowledged Pruitt’s complaints of neck and
back pain, but found that any injury sustained here was de minimis as there
were not even any bruises or contusions.
      Pruitt argues that he should have been allowed to present evidence after
his case was dismissed but before the district court certified that his appeal was
not taken in good faith. He also argues that the district court erred in denying
his discovery motion. As that motion was directed to the district court and not
to the defendants, there was no error. These arguments are frivolous.
      Pruitt has failed to show that his appeal involves “legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted). His motion to
proceed IFP on appeal is therefore denied, and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      Our dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). Pruitt has accumulated at least one other strike. See Pruitt v. Young, No.
2:05-cv-71438-VAR-WC (E.D. Mich. May 25, 2005) (IFP civil-rights complaint
dismissed for failure to state a claim). Pruitt is warned that if he accumulates
three strikes, he will be barred under § 1915(g) from proceeding IFP in any civil
action or appeal while he is detained or incarcerated in any facility unless he is
under imminent danger of serious physical injury. Pruitt should review any
pending matters to insure that none is frivolous.
      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.



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