The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-51117
Summary Calendar
COREY DURAN DAVIS,
Plaintiff-Appellant,
versus
MCLENNAN COUNTY JAIL; INMATE COOPER; GARY WOLLARD,
also known as Garrett Woolard,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CV-105
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Corey Duran Davis, Texas prisoner # 1156649, seeks leave to
proceed in forma pauperis (IFP) to appeal the district court’s
summary judgment in favor of Gary Wollard in Davis’s 42 U.S.C.
§ 1983 civil rights action. After granting summary judgment to
Gary Wollard, the district court denied Davis’s petition to
proceed IFP on appeal, certifying that the appeal was not taken
in good faith.
*
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this opinion should not be published and is not precedent except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. 05-51117
-2-
By moving this court for leave to proceed IFP, Davis is
challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P.
24(a)(5). He argues that: (1) the district court erred in
granting summary judgment because there was a genuine issue of
material fact concerning whether Wollard’s actions were
objectively reasonable; (2) the district court erred in granting
summary judgment without allowing discovery; (3) the district
court erred in granting summary judgment without allowing him an
opportunity to amend his complaint; and (4) the district court’s
summary of the facts was not supported by the record. Davis has
not demonstrated any nonfrivolous ground for appeal.
Davis has not shown that there was a genuine issue of
material fact concerning whether Wollard’s actions were
objectively reasonable. Whether Wollard’s delay in moving Davis
to another cell was objectively reasonable under the
circumstances of this case is a legal issue, not a genuine issue
of material fact that would preclude the court from granting
summary judgment. See Gonzales v. Dallas County, Texas, 249 F.3d
406, 411 & n.4 (5th Cir. 2001). Even if all of Davis’s
allegations are accepted as true, the summary judgment evidence
showed that Wollard did not have any information indicating that
Davis feared that he would be attacked by a specific inmate.
Davis has not shown that the district court erred in determining
that Wollard’s actions were objectively reasonable under the
No. 05-51117
-3-
circumstances and that he was entitled to qualified immunity.
See Johnson v. Johnson, 385 F.3d 503, 524-25 (5th Cir. 2004).
Davis argues that if the district court had allowed him to
conduct discovery, he could have obtained evidence showing that
he told an unknown prison officer that his life was in danger and
that Wollard knew that his nickname was Duke. Although Davis
alleged the violation of a clearly established right, he has not
shown that the district court erred in granting summary judgment
without allowing him to conduct discovery. Even if Davis
obtained this evidence through discovery and presented it with
his response to the summary judgment motion, he could not have
shown that Wollard’s actions were objectively unreasonable.
Davis argues that the district court erred in granting
summary judgment without giving him an opportunity to amend his
complaint. Because Davis’s original complaint alleged all of the
essential facts surrounding his claim and, therefore, pleaded his
best case, the district court did not err in granting summary
judgment without allowing him to amend his complaint because
amendment would have been futile. See Jacquez v. Procunier,
801 F.2d 789, 793 (5th Cir. 1986).
Davis argues that the district court’s summary of the facts
is not supported by the record. The district court accepted all
of Davis’s allegations as true, and its summary of the facts as
alleged by Davis was accurate and supported by the record.
No. 05-51117
-4-
Davis 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). His motion
for IFP is therefore denied, and his appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike
under 28 U.S.C. § 1915(g). Davis is cautioned that if he
accumulates three strikes, he will not be allowed to 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).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.