Shelton v. City of Midland

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50643
Conference Calendar
EARL HENRY SHELTON, JR.,
Plaintiff-Appellant,
versus
CITY OF MIDLAND,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:05-CV-124
--------------------
Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Earl Henry Shelton, Jr., Texas prisoner # 629604, moves for
leave to proceed in forma pauperis (IFP) on appeal. The district
court denied Shelton’s IFP motion and certified that the appeal
was not taken in good faith. By moving for IFP, Shelton is
challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Shelton asserts that his due process rights were violated
because the defendant performed an autopsy on his deceased wife
without his permission and did not return the body to Shelton for

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No. 06-50643
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burial although Shelton was the next of kin. He also asserts
that he wrongly lost custody of his children. The district court
concluded that Shelton’s claims, which accrued at the latest in
1992, were untimely. See Piotrowski v. City of Houston, 51 F.3d
512, 516 (5th Cir. 1995); TEX. CIV. PRAC. AND REM. CODE ANN.
§ 16.003(a). Shelton has not presented a nonfrivolous appellate
issue concerning the dismissal on limitations grounds.
Shelton has not shown that the district court’s conclusion
that his appeal would be frivolous was incorrect. The instant
appeal is without arguable merit and is thus frivolous.
Accordingly, Shelton’s request for IFP status is denied, and his
appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of Shelton’s 42 U.S.C. § 1983 suit by the
district court pursuant to 28 U.S.C. § 1915(e)(2)(B) and our
dismissal of this appeal as frivolous both count as strikes under
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Shelton has two prior strikes. Shelton v. Schorre,
No. 02-50216 (5th Cir. Aug. 21, 2002). Because Shelton has
accumulated at least three strikes under § 1915(g), he 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).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.

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