Easley v. State of Texas

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 31, 2001
• Docket: 01-40260
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40260 Summary Calendar

JERRY E. EASLEY,

Plaintiff-Appellant,

versus

STATE OF TEXAS,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CV-51 -------------------- August 30, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jerry E. Easley, Texas state prisoner # 421286, has appealed

the district court’s order dismissing his 42 U.S.C. § 1983

complaint and its order denying his postjudgment motion filed

pursuant to Fed. R. Civ. P. 60(b).

This court must raise, sua sponte, the issue of its own

jurisdiction, if necessary. Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987). Easley’s notice of appeal was not filed within

30 days of the entry of judgment dismissing his complaint. See

Fed. R. App. P. 4(a)(1)(A). Thus, Easley’s appeal from the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40260 -2-

underlying judgment was not timely filed, and this court does not

have jurisdiction to review the order of dismissal. Huff v.

International Longshoremen’s Ass’n, Local No. 24, 799 F.2d 1087,

1089-90 (5th Cir. 1986).

However, Easley’s notice of appeal was filed within 30 days

of the district court’s order denying his Rule 60(b) motion and,

thus, the notice of appeal conferred jurisdiction on this court

to review that order. Matter of Ta Chi Navigation (Panama) Corp.

S.A., 728 F.2d 699, 703 (5th Cir. 1984). This court reviews the

denial of a Rule 60(b) motion for an abuse of discretion.

Travelers Ins. Co. v. Liljeberg Enter., Inc., 38 F.3d 1404, 1408

(5th Cir. 1994). “Appellate review of a denial of a rule 60(b)

motion ‘must be narrower in scope than review of the underlying

order of dismissal so as not to vitiate the requirement of a

timely appeal.’” Huff, 799 F.2d at 1091 (citation omitted).

Easley’s arguments on appeal are directed to the district

court’s underlying order dismissing his complaint, which the

court does not have jurisdiction to address. Easley does not

assert that he was entitled to relief under any specific section

of Fed. R. Civ. P. 60(b), and he does not challenge the district

court’s reasons for denying his motion. Easley has failed to

show an abuse of discretion by the district court and, thus, he

has not shown that he was entitled to relief under Fed. R. Civ.

P. 60(b).

Because Easley’s appeal has no arguable merit, it is

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5TH CIR. R. 42.2. No. 01-40260 -3-

The district court properly characterized Easley’s claims as

arising under 42 U.S.C. § 1983 because he is challenging the

conditions of his confinement, and he has not asserted that the

defendant’s conduct will have any effect on the duration of his

sentence. See Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir.

1997).

Because Easley’s pleadings were properly construed as a 42

U.S.C. § 1983 complaint, the provisions of the Prison Litigation

Reform Act (PLRA) are applicable, including the three-strikes

provision of 28 U.S.C. § 1915(g).

Easley had at least three 28 U.S.C. § 1915(g) strikes

against him prior to bringing this action.** See Easley v.

Vance, No. 94-50345 (5th Cir. Jan. 27, 1995)(appeal affirming the

district court’s dismissal of the complaint as frivolous pursuant

to 28 U.S.C. § 1915(d)); Easley v. Johnson, No. 98-40627 (5th

Cir. Feb. 11, 1999)(district court dismissed complaint as

frivolous, and this court dismissed the appeal as frivolous,

finding it had no arguable merit). See Adepegba v. Hammons, 103

F.3d 383, 385-88 (5th Cir. 1996). The district court’s dismissal

of the present case, and this court’s dismissal of Easley’s

instant appeal as frivolous count as two additional strikes

against him for purposes of 28 U.S.C. § 1915(g). Id.

** Because Easley paid the appellate filing fee in the instant case, review of this appeal was not precluded by 28 U.S.C. § 1915(g). No. 01-40260 -4-

Thus, Easley is BARRED from proceeding in forma pauperis

(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).

APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR

INVOKED.