Galer v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50846 Summary Calendar

RUSSELL EUGENE GALER, II,

Petitioner-Appellant,

versus

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

Respondent-Appellee.

-------------------- Appeals from the United States District Court for the Western District of Texas USDC No. W-00-CV-034 -------------------- February 1, 2001

Before HIGGINBOTHAM, WIENER, and BARKDSALE, Circuit Judges.

PER CURIAM:*

Russell Eugene Galer, II, 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

“Petition for Discretionary Review,” which is construed as a

request for leave to proceed without a COA, and a “Motion for

Judgment of Default.”

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50846 -2-

Galer has failed to establish in the district court that

there existed a substantial likelihood of success on the merits,

which is required 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. Jackson v.

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

529 U.S. 473, 120 S. Ct. 1595, 1604 (2000). Galer’s remaining

motions are likewise 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.