Case: 19-50223      Document: 00515463555         Page: 1    Date Filed: 06/23/2020




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

                                                                                FILED
                                      No. 19-50223                          June 23, 2020
                                                                           Lyle W. Cayce
JESUS RENE RAMIREZ,                                                             Clerk


                                                 Plaintiff-Appellant

v.

UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES
DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS; UNITED STATES DEPARTMENT OF JUSTICE, UNITED
STATES ATTORNEY OFFICE WESTERN DISTRICT OF TEXAS; UNITED
STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEY
OFFICE WESTERN DISTRICT OF TEXAS EL PASO DIVISION,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:18-CV-308


Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jesus Rene Ramirez, federal prisoner # 73256-080, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his Freedom of Information Act (FOIA) action as frivolous and malicious and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 19-50223

the denial of his postjudgment motion filed pursuant to Federal Rule of Civil
Procedure 60(b). In his FOIA action, Ramirez argued that the defendants
violated 5 U.S.C. § 552(a) by wrongfully withholding a written agreement that
promised him immunity from prosecution.
      By moving to proceed IFP, Ramirez is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,

, 202 (5th Cir. 1997). Ramirez has not addressed the district
court’s finding that there was no immunity agreement and that his FOIA
action was thus factually frivolous. He thus has not shown that he will raise
any nonfrivolous appellate issues concerning the dismissal of his FOIA action
as frivolous. See Howard v. King, 

, 220 (5th Cir. 1983); see also
Yohey v. Collins, 

, 224-25 (5th Cir. 1993). Accordingly, we need
not address the district court’s alternative determination that Ramirez’s FOIA
action was malicious.
      As to the denial of his Rule 60(b) motion, Ramirez focuses on the
propriety of the district court’s dismissal of his underlying FOIA action rather
than the court’s determinations that his Rule 60(b) motion raised mistakes of
law more properly presented on appeal and that his FOIA action was dismissed
as factually frivolous based on a finding that there was no immunity
agreement. Ramirez, thus, has not shown that he will raise any nonfrivolous
appellate issues concerning the denial of his Rule 60(b) motion. See 

; 

.
      In light of the foregoing, we DENY the motion to proceed IFP, and we
DISMISS this appeal as frivolous. See 

& n.24; 5TH CIR.
R. 42.2. Both the district court’s dismissal of Ramirez’s civil action and our
dismissal of his appeal count as strikes under 28 U.S.C. § 1915(g).          See
Adepegba v. Hammons, 

, 388 (5th Cir. 1996).             Ramirez is



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                                  No. 19-50223

WARNED that his receipt of a third strike will preclude him from proceeding
IFP in any civil action or appeal while he is incarcerated or detained in any
facility unless he is in “imminent danger of serious physical injury.” § 1915(g).
Additionally, Ramirez is WARNED that frivolous, repetitive, or abusive filings
will result in the imposition of sanctions, which may include dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
and any court subject to this court’s jurisdiction.




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