     Case: 13-40717      Document: 00512454063         Page: 1    Date Filed: 11/26/2013




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

                                                                                   FILED
                                      No. 13-40717                          November 26, 2013
                                                                              Lyle W. Cayce
                                                                                   Clerk
TIMOTHY SCOTT HARRIMAN,

                                                 Plaintiff - Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; FRANK HOKE;
JOHN BECRAFT,

                                                 Defendants - Appellees.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:13-CV-357


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Timothy Scott Harriman, Texas prisoner # 677187, seeks leave to appeal
in forma pauperis (IFP). He filed a 42 U.S.C. § 1983 action alleging that he
was denied access to the courts due to deficiencies in a prison law library. The
district court dismissed his action as frivolous, denied leave to appeal IFP, and
certified 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40717       Document: 00512454063   Page: 2   Date Filed: 11/26/2013


                                  No. 13-40717

        By moving to proceed IFP, Harriman challenges the district court’s
certification that his appeal is not in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Our inquiry “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).
        The closest Harriman comes to addressing the district court’s reason for
dismissing his action—a lack of actual harm—is a bare assertion that he was
unable to learn of the limitation period for filing a 28 U.S.C. § 2254 petition
because the defendants “concealed” some law books behind the counter to
prevent prisoners from tearing out pages. He does not even suggest that the
materials were not available for the asking. In addition, Harriman has never
identified a non-frivolous claim that he might have raised at any time but for
the alleged deprivation of legal materials. See Christopher v. Harbury, 536
U.S. 403, 415 (2002) (requiring a prisoner to set forth some non-frivolous
underlying claim that was lost because of the defendants’ wrongful actions).
        Accordingly, the motion for IFP status is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R.
42.2.
        This frivolous appeal earns Harriman a “strike” under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385–87 (5th Cir. 1996).
The district court’s dismissal as frivolous was also a strike. See id. Harriman
is warned that if he accumulates one more strike by bringing another frivolous
action or appeal, he will not be allowed to proceed IFP in any civil action while
incarcerated or detained unless he is in imminent danger of serious physical
injury. See § 1915(g).




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