Michael Hurtado v. Trial Court Judges, et al, No. 16-10453 (5th Cir. 2017)

Annotate this Case
Download PDF
Case: 16-10453 Document: 00514011746 Page: 1 Date Filed: 05/30/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10453 United States Court of Appeals Fifth Circuit FILED May 30, 2017 MICHAEL HURTADO, Plaintiff-Appellant Lyle W. Cayce Clerk v. TRIAL COURT JUDGES OF THE FOLLOWING DISTRICTS, Individually and in Their Official Capacities; TRIAL COURT DISTRICT ATTORNEYS OF THE FOLLOWING DISTRICTS, Individually and in Their Official Capacities; TRIAL COURT DEFENSE ATTORNEYS, Individually and in Their Official Capacities, Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 3:15-CV-3402 Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * Michael Hurtado, Texas prisoner # 1445905, moves for leave to proceed in forma pauperis (IFP) in an appeal of the district court’s dismissal of a 42 U.S.C. § 1983 complaint. His IFP motion is a challenge to the district court’s 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-10453 Document: 00514011746 Page: 2 Date Filed: 05/30/2017 No. 16-10453 certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The original § 1983 complaint alleged that trial court judges, district attorneys, and defense attorneys violated Texas criminal defendants’ rights in various ways relating to their indictment and prosecution. We agree that Hurtado’s IFP motion 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, we deny his motion for leave to proceed IFP and dismiss the appeal as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The district court’s dismissal of Hurtado’s complaint and this court’s dismissal of his appeal each count as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Hurtado also received two strikes in another recent appeal (No. 16-50039). Because he has accumulated at least three strikes under § 1915(g), Hurtado is barred from proceeding 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 FOR LEAVE TO PROCEED IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED. 2