Ester v. Nacogdoches Co, Tex

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 27, 1999
• Docket: 98-40693
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41090 c/w 98-40693 Conference Calendar

HENRY EARL ESTER,

Plaintiff-Appellant,

versus

NACOGDOCHES COUNTY, TEXAS; JOE EVANS, In his official capacity as Sheriff, Nacogdoches County, Texas,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:95-CV-284 --------------------

August 25, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Henry Earl Ester, Texas prisoner # 442275, appeals the

district court’s denial of his motion for a temporary restraining

order and/or preliminary injunction, the denial of his motion for

summary judgment, and the grant of summary judgment for the

defendant in this 42 U.S.C. § 1983 action.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41090 c/w 98-40693 -2-

In his argument, Ester argues that the “court below” abused

its discretion in excluding relevant evidence vital to his case.

He contends that he repeatedly attempted to introduce two

affidavits pursuant to the Texas Rules of Evidence. He also

argues that the “court below” abused its discretion in admitting

evidence, the statement of Joe Sanders, introduced by the State,

which testimony was improperly obtained in a proceeding at which

he was not present and unable to cross-examine. Lastly, he

argues that the State failed in its burden of proof, that the

evidence introduced was legally and factually insufficient to

support the court’s judgment, and that the court’s legal and

factual determination of the evidence was based solely on factors

it was forbidden by law to consider, because the only evidence

introduced was in violation of the Texas Rules of Evidence.

The “court below” referred to by Ester is the state court

which decided that Ester did not own the money, and the evidence

referred to is the evidence produced at the state court hearing.

Ester is asking this court to review the propriety of the state

court proceedings. He makes no argument whatsoever about the

propriety of the district court’s grant of summary judgment for

the defendant in this case, or the denial of his motion for an

injunction.

Ester has not adequately briefed any argument relating to

the district court’s grant of summary judgment or the denial of

his request for injunctive relief. See Grant v. Cuellar, 59 F.3d

523, 524 (5th Cir. 1995). Failure by the appellant to identify No. 97-41090 c/w 98-40693 -3-

any error in the district court's analysis or application to the

facts of the case is the same as if the appellant had not

appealed that judgment. Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Ester argues that the district court was divested of

jurisdiction when he filed his interlocutory notice of appeal

from the district court’s order denying him injunctive relief and

that the district court did not have jurisdiction to grant the

defendant’s motion for summary judgment while that appeal was

pending. The pendency of an interlocutory appeal from the denial

of a preliminary injunction does not ordinarily divest the

district court of jurisdiction to proceed with other aspects of

the case, including a final decision on the merits of the case.

Railway Labor Executives Ass'n v. City of Galveston, Texas, 898

F.2d 481 (5th Cir. 1990); Nalco Chemical Co. v. Hall, 347 F.2d

90, 92 (5th Cir. 1965).

Ester argues that the district court erred in applying the

PLRA retroactively when his case was filed before the effective

date of the Act. He also argues that the district court erred in

assessing an additional filing fee for his amended notice of

appeal. The district court did not err in assessing a fee under

the PLRA. See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.

1998). Nor was it error for a fee to be assessed for the filing

of Ester’s amended notice of appeal.

Ester’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). No. 97-41090 c/w 98-40693 -4-

Because the appeal is frivolous, it is DISMISSED. See 5th Cir.

R. 42.2. Ester's motion to advance review is DENIED.

The dismissal of this appeal as frivolous counts as a strike

for purposes of 28 U.S.C. § 1915(g). We caution Ester 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).

APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED.