     Case: 19-40242      Document: 00515233429         Page: 1    Date Filed: 12/12/2019




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

                                      No. 19-40242
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 12, 2019

BILLY RAY BUTLER,                                                        Lyle W. Cayce
                                                                              Clerk
                                                 Plaintiff–Appellant,

v.

YOUNG; LONG; R. CARRWAY; MEDICAL STAFF, Smith County Jail;
SERGEANT YOUNG; JOHN DOE,

                                                 Defendants–Appellees.


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:18-CV-154


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Billy Ray Butler, Texas prisoner # 2098961, moves for leave to proceed
in forma pauperis (IFP) in his appeal from the district court’s dismissal of his
42 U.S.C. § 1983 complaint on summary judgment based on failure to exhaust
his administrative remedies. By seeking leave to proceed IFP in this court,
Butler is challenging the district court’s denial of leave to proceed IFP and
certification that his appeal would be frivolous and not taken in good faith. See


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40242    Document: 00515233429      Page: 2   Date Filed: 12/12/2019


                                  No. 19-40242

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an
appellant’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) (internal quotation marks and citation omitted).
      Having reviewed his submissions, we are not persuaded that Butler has
identified a nonfrivolous issue for appeal with respect to the district court’s
grant of summary judgment based on the failure to exhaust, see Wilson v. Epps,
776 F.3d 296, 299-300 (5th Cir. 2015); Gonzalez v. Seal, 702 F.3d 785, 788 (5th
Cir. 2012), denial of discovery, see Access Telecom, Inc. v. MCI Telecomm. Corp.,
197 F.3d 694, 720 (5th Cir. 1999), or denial of his motion for appointment of
counsel, see Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015). The
appeal therefore lacks arguable merit and is frivolous. See Howard, 707 F.2d
at 220.
      Accordingly, Butler’s request for leave to proceed IFP on appeal is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at
202 n.24; see also 5TH CIR. R. 42.2. His motion for appointment of counsel on
appeal is likewise DENIED. See Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d
1078, 1084 (5th Cir. 1991).
      The dismissal of this appeal as frivolous counts as a “strike” under
28 U.S.C. § 1915(g). Butler is WARNED that if he accumulates three strikes
he may not thereafter proceed IFP 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).




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