     Case: 16-41461      Document: 00514172684         Page: 1    Date Filed: 09/27/2017




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

                                      No. 16-41461                               FILED
                                                                         September 27, 2017
                                                                            Lyle W. Cayce
SHERWAYNE D. FRAZIER,                                                            Clerk

                                                 Plaintiff-Appellant

v.

TODD FOXWORTH, Warden, Michael Unit; CHRISTOPHER HOLMAN,
Captain, Michael Unit; ROBERT C. BUSH, JR., Lieutenant, Michael Unit;
DEREK W. LIGHT, Correctional Officer 4, Michael Unit; ROBERT L.
TAYLOR, Sergeant, Michael Unit,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-669


Before JOLLY, SMITH and HAYNES, Circuit Judges.
PER CURIAM: *
       Sherwayne D. Frazier, Texas prisoner # 1587204, has filed a motion to
obtain a trial transcript at the Government’s expense to appeal a judgment
dismissing his claims of excessive force against defendants Captain
Christopher Holman, Officer Derek W. Light, and Sergeant Robert L. Taylor,
in accordance with the jury’s verdict.            He asserts that the transcript is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41461

necessary for him to pursue his appeal and that he cannot pay for the
transcript.   Frazier contends that his trial counsel rendered ineffective
assistance; the magistrate judge erred in instructing the jury regarding the
law to be applied; he should have been administered a polygraph examination
to prove his honesty, as all the defense witnesses committed perjury; a witness
should have been but was not subpoenaed to testify at trial; and the magistrate
judge erred in refusing to allow the introduction of the defendants’ disciplinary
files as proof of character.
      To obtain a transcript at government expense, Frazier must satisfy the
criteria of 28 U.S.C. § 753(f). See Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir.
1985). Section 753(f) provides, in part, that the United States shall pay the
fees for transcripts furnished in civil proceedings to persons permitted to
appeal in forma pauperis (IFP) if the trial judge or a circuit judge certifies that
the appeal is not frivolous but presents a substantial question. § 753(f). The
moving party must also establish that the transcript is necessary for proper
disposition of the appeal. Harvey, 754 F.2d at 571.
      The magistrate judge granted Frazier leave to appeal IFP but denied his
motion for the production of a transcript at the Government’s expense. Frazier
has not alleged a particularized need for the jury trial transcript or shown that
his appeal is not frivolous and presents a substantial question. Accordingly,
he has not satisfied his burden for obtaining a transcript at government
expense. See § 753(f); Harvey, 754 F.2d at 571. Therefore, his motion is denied,
and the appeal is dismissed as frivolous. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983); 5TH CIR. R. 42.2.
      The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Frazier is cautioned that once he accumulates three strikes, he may not



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                                  No. 16-41461

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).
      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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