Elawyers Elawyers
Ohio| Change

Derrow v. US Atty General, 07-40585 (2008)

Court: Court of Appeals for the Fifth Circuit Number: 07-40585 Visitors: 48
Filed: Feb. 13, 2008
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 13, 2008 No. 07-40585 Summary Calendar Charles R. Fulbruge III Clerk MICHAEL JOSEPH DERROW Plaintiff-Appellant v. UNIDENTIFIED UNIDENTIFIED, U.S. District Clerk; JOHN DOE, Numbered One Through Ten, All Individually and Under the Capacity of Employment; UNITED STATES DISTRICT CLERK; UNITED STATES ATTORNEY GENERAL DEPARTMENT OF JUSTICE; UNITED STATES ATTORNEY FOR THE EASTERN DIST
More
          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                     FILED
                                                                  February 13, 2008
                                 No. 07-40585
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

MICHAEL JOSEPH DERROW

                                             Plaintiff-Appellant

v.

UNIDENTIFIED UNIDENTIFIED, U.S. District Clerk; JOHN DOE, Numbered
One Through Ten, All Individually and Under the Capacity of Employment;
UNITED STATES DISTRICT CLERK; UNITED STATES ATTORNEY
GENERAL DEPARTMENT OF JUSTICE; UNITED STATES ATTORNEY FOR
THE EASTERN DISTRICT OF TEXAS; RICHARD BRAZZIL; US
MAGISTRATE JUDGE KEITH F GIBLIN

                                             Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 9:06-CV-137


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Michael Joseph Derrow, federal prisoner # 03199-286, moves this court to
proceed in forma pauperis (IFP) in this appeal from the district court’s dismissal
of his civil lawsuit against several federal officials involved in the prosecution of


      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-40585

Derrow’s criminal conviction. The district court dismissed Derrow’s suit because
it was barred by the principles of res judicata; it was an unauthorized successive
28 U.S.C. § 2255 motion; it was barred by Heck v. Humphrey, 
512 U.S. 477
(1994); and it was barred by the statute of limitations. The district court also
denied Derrow’s request to proceed IFP on appeal, certifying that the appeal was
not taken in good faith. Derrow’s IFP motion is a challenge to the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 
117 F.3d 197
, 202 (5th Cir. 1997).
      Derrow does not address the district court’s reasons for dismissing his
lawsuit. Because he fails to identify any error in the district court’s analysis, the
argument is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744
, 748 (5th Cir. 1987).
      Derrow 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, the motion
for leave to proceed IFP is denied and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.
      The dismissal of Derrow’s lawsuit by the district court as frivolous and the
dismissal of this appeal as frivolous count as two strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 
103 F.3d 383
, 387 (5th Cir. 1996). Derrow
is cautioned that if he accumulates three strikes under § 1915(g), he will not be
able to proceed 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. § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




                                         2

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer