Case: 21-10182 Document: 00516158438 Page: 1 Date Filed: 01/07/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 7, 2022 No. 21-10182 Summary Calendar Lyle W. Cayce Clerk Tracey Harris Coomer, Plaintiff—Appellant, versus Mark Roth; Warden Arnold; Daisha B. Simmons; Dawn A. Andersen; Mickenzie M. Gill; Julie A. Marguez; Charles Hufford; Lori Davis; Major NFN Ivey, Captain A. Chisum; Sergeant Anthony R. Marquez, Shane Hembree, Defendants—Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:18-CV-121 ON PETITION FOR REHEARING Before Smith, Higginson, and Willett, Circuit Judges. Per Curiam:* * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-10182 Document: 00516158438 Page: 2 Date Filed: 01/07/2022 The panel has considered Mr. Coomer’s petition for panel rehearing and has concluded that his argument is well taken. As a result, we now withdraw our original panel opinion,1 replacing it with the following opinion. Tracey Harris Coomer, Texas prisoner # 1473063, filed a lawsuit under 42 U.S.C. § 1983, claiming that prison officials confiscated and destroyed his personal property, both in violation of his right to due process and in retaliation for his filing of grievances. He also moved for an injunction related to additional property loss after the filing of his suit. After granting Coomer leave to proceed in forma pauperis (IFP), the district court screened the complaint under 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2). It ultimately dismissed the complaint with prejudice, denied Coomer’s motion for an injunction, and imposed a strike under § 1915(g). The district court concluded that Coomer’s complaint was filed outside the statute of limitations and, in the alternative, that his claims were frivolous. It also denied Coomer’s motion to proceed IFP on appeal, certifying that the appeal was not taken in good faith. Because Coomer’s appeal is not frivolous, his motion to proceed IFP is GRANTED. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). We also conclude that further briefing is unnecessary and turn to the merits. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The dismissal of Coomer’s civil rights complaint as frivolous is reviewed for abuse of discretion. See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (citing Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999)); see 1 Coomer v. Roth, No. 21-10182, 2021 WL 4714607 (5th Cir. Oct. 8, 2021) (per curiam) (unpublished). Case: 21-10182 Document: 00516158438 Page: 3 Date Filed: 01/07/2022 No. 21-10182 also Green v. Atkinson, 623 F.3d 278, 279-80 (5th Cir. 2010). A complaint is frivolous if it lacks (1) an arguable basis in law because “it is based on an indisputably meritless legal theory” or (2) an arguable basis in fact because, “after providing the plaintiff the opportunity to present additional facts when necessary, the facts …
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