Galer v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 11, 2000
• Docket: 00-50350
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50350 Summary Calendar

RUSSELL EUGENE GALER, II,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-00-CV-034 -------------------- September 1, 2000

Before HIGGINBOTHAM, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Russell Eugene Galer, II, now Texas prisoner #315395, has

moved for leave to proceed in forma pauperis (IFP) and for a

certificate of appealability (COA) in order to appeal the

district court’s interlocutory order denying his application for

injunction. See 28 U.S.C. § 1292(a)(1). Galer has also filed a

“Summary of Complaint,” which is construed as a motion for

injunction pending appeal.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50350 -2-

To obtain leave to appeal IFP, Galer must show that his

appeal presents a nonfrivolous issue. See Jackson v. Dallas

Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). Galer, however,

has not done so in the instant case. Although Galer challenges

the denial of his application for injunction, he failed to

establish in the district court that there existed either a

substantial likelihood of success on the merits or a substantial

threat that the failure to grant the injunction would result in

irreparable injury, both of which are part of the requisite

showing to obtain an injunction. See Lakedreams v. Taylor, 932

F.2d 1103, 1107 (5th Cir. 1991).

Because Galer has not shown that the district court erred in

denying his application for injunction, his appeal presents no

nonfrivolous issue. Accordingly, his IFP application is DENIED.

See Jackson, 811 F.2d at 261. His COA application is also

DENIED, to the extent that one is required under 28 U.S.C.

§ 2253(c)(1)(A). See Slack v. McDaniel, 120 S. Ct. 1595, 1604

(2000). Finally, his motion for an injunction pending appeal is

DENIED. Because Galer’s appeal is without arguable merit, we

DISMISS his appeal as frivolous. See Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983); 5TH CIR R. 42.2.

MOTIONS DENIED; APPEAL DISMISSED.