Filed: Dec. 09, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2003 Charles R. Fulbruge III Clerk No. 03-30471 Conference Calendar EARNEST L. SMITH, Plaintiff-Appellant, versus LOUISIANA STATE; PAROLE BOARD STAFF; VERDEGRA SCOTT, Department of Corrections Parole Board Staff; E. PEGGY LANDRY, Department of Corrections Parole Staff; GETIHEN MCCASTLE, Department of Corrections Parole Board Staff, Defendants-Appellees. - Appeal from th
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2003 Charles R. Fulbruge III Clerk No. 03-30471 Conference Calendar EARNEST L. SMITH, Plaintiff-Appellant, versus LOUISIANA STATE; PAROLE BOARD STAFF; VERDEGRA SCOTT, Department of Corrections Parole Board Staff; E. PEGGY LANDRY, Department of Corrections Parole Staff; GETIHEN MCCASTLE, Department of Corrections Parole Board Staff, Defendants-Appellees. - Appeal from the..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-30471
Conference Calendar
EARNEST L. SMITH,
Plaintiff-Appellant,
versus
LOUISIANA STATE; PAROLE BOARD STAFF; VERDEGRA SCOTT,
Department of Corrections Parole Board Staff; E. PEGGY
LANDRY, Department of Corrections Parole Staff; GETIHEN MCCASTLE,
Department of Corrections Parole Board Staff,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 03-CV-538
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Earnest L. Smith, Louisiana prisoner #1077412, has moved in
this court for in forma pauperis (IFP) status on appeal, thereby
challenging the district court’s certification that the appeal is
not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202
(5th Cir. 1997). Smith’s challenge to the allegedly
unconstitutional revocation of his parole is not cognizable in
*
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that this opinion should not be published and is not precedent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. 03-30471
-2-
the instant 42 U.S.C. § 1983 action because he has not
demonstrated or alleged “that his conviction or sentence has been
reversed on direct appeal, expunged by executive order, or called
into question by a federal court’s issuance of a writ of habeas
corpus.” Cronn v. Buffington,
150 F.3d 538, 541 (5th Cir. 1998).
Smith’s assertion, raised for the first time on appeal, that the
district court judge should have been recused due to his
participation in Smith’s prior 28 U.S.C. § 2241 proceeding is
equally frivolous. See Liteky v. United States,
510 U.S. 540,
555 (1994). Accordingly, this appeal is DISMISSED as frivolous.
See
Baugh, 117 F.3d at 202 n.24 (citing 5TH CIR. R. 42.2).
The dismissal of this appeal as frivolous and the district
court’s dismissal of this lawsuit under 28 U.S.C. § 1915A(b)(1)
each count as a strike for purposes of the 28 U.S.C. § 1915(g)
bar. Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). We
caution Smith 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 28 U.S.C.
§ 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; WARNING
ISSUED.