Blaylock v. Dettman

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 1997
• Docket: 95-50783
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-50783 Summary Calendar

DONNIE EUGENE BLAYLOCK,

Plaintiff-Appellant,

versus

MARK DETTMAN, Midland County Attorney; GARY PAINTER, Sheriff of Midland County, Texas,

Defendants-Appellees.

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GARY PAINTER, Sheriff of Midland County, Texas; MARK DETTMAN, Midland County Attorney,

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. MO-94-CV-209 USDC No. MO-94-CV-244 - - - - - - - - - - June 3, 1997 Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule No. 95-50783 - 2 -

Donnie Eugene Blaylock, Texas prisoner #643199, seeks leave

to proceed in forma pauperis (IFP) on his appeal from the

judgment for the defendants in his consolidated civil rights

actions. Blaylock’s motion is GRANTED. The Prison Litigation

Reform Act (PLRA) requires a prisoner appealing IFP in a civil

action to pay the full amount of the filing fee, $105. As

Blaylock does not have funds for immediate payment of this fee,

he is assessed an initial partial filing fee of $11.32, in

accordance with 28 U.S.C. § 1915(b)(1). Following payment of the

initial partial filing fee, the remainder will be deducted from

Blaylock’s prison trust-fund account until the entire filing fee

is paid. § 1915(b)(2).

IT IS ORDERED that Blaylock authorize the appropriate prison

authorities to withdraw the initial partial filing fee in

accordance with the procedures required by the prison and to

forward payment to the clerk of the District Court for the

Western District of Texas. IT IS FURTHER ORDERED that the agency

having custody of Blaylock’s inmate account shall collect the

remainder of the $105 filling fee and forward for payment, in

accordance with § 1915(b)(2), to the clerk of the District Court

of the Western District of Texas each time the amount in

Blaylock’s account exceeds $10, until the appellate filing fee is

paid.

Blaylock contends that he was deprived of his right of

47.5.4. No. 95-50783 - 3 -

access to the courts by the library-access policies of the

Midland County, Texas, jail; that the jail’s library-access

policies violated a court decree; that the magistrate judge erred

by consolidating his two cases; that he should have been allowed

to intervene in another case involving library access at the

jail; that the magistrate judge erred by declining to subpoena a

witness Blaylock desired; and that the magistrate judge erred by

denying his motion to appoint counsel. Regarding Blaylock’s

access claim, we have reviewed the record and the briefs of the

parties and we find Blaylock’s contention frivolous for

essentially the reasons relied upon by the magistrate judge.

Blaylock v. Painter, Nos. MO-94-CA-209 & MO-94-CA-244 (W.D. Tex.

Oct. 2, 1995).

The consolidation of Blaylock’s cases was not an abuse of

discretion; the cases involved common questions of law and fact.

Bottazzi v. Petroleum Helicopters, Inc., 664 F.2d 49, 50 (5th

Cir. 1981). Remedial decrees do not create or expand

constitutional rights, Green v. McKaskle, 788 F.2d 1116, 1123

(5th Cir. 1986); Blaylock’s contention based on the decree is

unavailing. Assuming that Blaylock moved in the district court

to intervene in an earlier-decided case involving access to the

law library, denial of his request was not erroneous. Edwards v.

City of Houston, 78 F.3d 983, 999 (5th Cir. 1996).

The magistrate judge did not abuse his discretion by

declining to subpoena Blaylock’s former criminal attorney. No. 95-50783 - 4 -

Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985). Blaylock’s

testimony at trial indicated that his petition for discretionary

review was filed late because he believed he would get a grace

period following the due date of the petition. His former

attorney’s testimony would have been irrelevant to that issue.

Denial of Blaylock’s motion for appointment of counsel was

not an abuse of discretion. Jackson v. Dallas Police Dep’t, 811

F.2d 260, 261 (5th Cir. 1986). Blaylock’s appeal is frivolous

and therefore is dismissed.

APPEAL DISMISSED. 5TH CIR. R. 42.2.