Elawyers Elawyers
Washington| Change

Young v. Baxley, 99-11324 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-11324 Visitors: 23
Filed: Jun. 19, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-11324 Conference Calendar LARRY DEWAYNE YOUNG, Plaintiff-Appellant, versus BRENDA L. BAXLEY; D. BIERA, Defendants-Appellees. - Appeals from the United States District Court for the Northern District of Texas USDC No. 7:99-CV-199-R - June 14, 2000 Before JOLLY, DAVIS, and STEWART, Circuit Judges. PER CURIAM:* Larry Dewayne Young, Texas inmate #579131, moves for leave to appeal in forma pauperis (IFP). “To proceed on appeal [IFP],
More
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 99-11324
                          Conference Calendar



LARRY DEWAYNE YOUNG,

                                           Plaintiff-Appellant,

versus

BRENDA L. BAXLEY; D. BIERA,

                                           Defendants-Appellees.

                       --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                      USDC No. 7:99-CV-199-R
                       --------------------
                           June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

     Larry Dewayne Young, Texas inmate #579131, moves for leave

to appeal in forma pauperis (IFP).     “To proceed on appeal [IFP],

a litigant must be economically eligible, and his appeal must not

be frivolous.”     Jackson v. Dallas Police Dep’t, 
811 F.2d 260
, 261

(5th Cir. 1986).

     The district court did not err in its denial of Young’s

postjudgment motion seeking leave to amend his complaint.    A

dismissal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) does

not provide the procedural protection of opportunity to amend

     *
        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that this opinion should not be published and is not precedent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. 99-11324
                                 -2-

before dismissal.    See Graves v. Hampton, 
1 F.3d 315
, 318 n.12

(5th 1993).

     To the extent that Young challenges the district court’s

dismissal for frivolousness, his notice of appeal is untimely as

to the district court’s judgment.       See FED. R. APP. P. 4(a)(1)(A).

Consequently, we do not have jurisdiction over the matter.        See

Nelson v. Foti, 
707 F.2d 170
, 171-72 (5th Cir. 1983).

     Leave to appeal IFP is DENIED.       This appeal is frivolous and

therefore is DISMISSED.    See 5TH CIR. R. 42.2.    The dismissal of

this appeal and the dismissal of the complaint as frivolous by

the district court each count as a strike for purposes of 28

U.S.C. § 1915(g).    See Adepegba v. Hammons, 
103 F.3d 383
, 387-88

(5th Cir. 1996).    We caution Young that once he accumulates

three strikes, he may not 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.

See § 1915(g).

     IFP DENIED.    APPEAL DISMISSED.

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