Fisher v. Wyatt

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-41001 Conference Calendar

BARRY ALLEN FISHER,

Plaintiff-Appellant,

versus

JOHN WYATT et al,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:95-CV-311 - - - - - - - - - - April 16, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Barry Allen Fisher, Texas state prisoner #488975, appeals

the dismissal of his 42 U.S.C. § 1983 civil rights complaint as

frivolous. He has filed a motion for leave to proceed in forma

pauperis (IFP) on appeal. The motion for leave to appeal IFP is

GRANTED.

The Prison Reform Act (PLRA) requires a prisoner appealing

IFP in a civil action to pay the full amount of the filing fee,

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-41001 - 2 -

$105. Fisher is assessed an initial partial filing fee of $2, in

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

initial partial filing fee, the remainder will be deducted from

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

paid. § 1915(b)(2).

IT IS ORDERED that Fisher pay the appropriate filing fee to

the clerk of the District Court for the Eastern District of

Texas. IT IS FURTHER ORDERED that the agency having custody of

Fisher’s inmate account shall collect the remainder of the filing

fee and forward for payment, in accordance with § 1915(b)(2), to

the Clerk of the District Court for the Eastern District of Texas

monthly payments of 20 per cent of the preceding month’s income

each time the amount in Fisher’s account exceeds $10, until the

appellate filing fee of $105 is paid.

Fisher argues that the state trial court abused its

discretion in dismissing his state court action against the

defendants for assault and battery. Notwithstanding that Fisher

failed to address the reasons for the district court’s dismissal

of his lawsuit, see Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987), the district court

lacked jurisdiction to entertain a collateral attack on a state

court judgment. Liedtke v. State Bar of Texas, 18 F.3d 315, 317

(5th Cir.), cert. denied, 115 S. Ct. 271 (1994).

Fisher’s appeal is without arguable merit and is DISMISSED

as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. No. 96-41001 - 3 -

1983). We caution Fisher that future frivolous civil suits and

appeals filed by him or on his behalf will invite the imposition

of sanctions. Fisher is cautioned further to review any pending

appeals to ensure that they do not raise arguments that are

frivolous.

APPEAL DISMISSED; SANCTIONS WARNING ISSUED. 5th Cir. R.

42.2.