Galer v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21026 Conference Calendar

RUSSELL EUGENE GALER, II,

Plaintiff-Appellant,

versus

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

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-2742 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Russell Eugene Galer II, Texas prisoner #315395, seeks leave

to proceed in forma pauperis (IFP) on appeal following the

district court’s certification that his appeal is taken in bad

faith. Galer’s request for appointment of counsel on appeal is

DENIED.

Galer argues that it is fundamentally unfair to require

indigent prisoners to pay filing fees. Galer did not raise his

argument in the district court. We do not consider Galer’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-21026 -2-

contention. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997)(a litigant’s request “must be directed solely to the trial

court’s reasons for the certification decision.”) Moreover, an

IFP motion following a bad-faith certification triggers the

financial screening and assessment provisions of the Prison

Litigation Reform Act (PLRA). Id. Galer’s contention therefore

is unavailing on its merits.

Galer has abandoned any substantive challenge to the

dismissal of his action as frivolous by failing to brief any such

challenge. In re Municipal Bond Reporting Antitrust Litigation,

672 F.2d 436, 439 n.6 (5th Cir. 1982). Galer’s appeal is

dismissed as frivolous. 5TH CIR. R. 42.2.

Galer previously has had one action dismissed by the

district court as frivolous. Galer v. Texas, No. H-99-CV-1448

(S.D. Tex. Mar. 23, 2000). He has had one action dismissed by

the district court for failure to state a claim; his appeal from

that dismissal was dismissed as frivolous. Galer v. Johnson, No.

00-50021 (5th Cir. Dec. 13, 2000)(unpublished). He has had

another appeal dismissed as frivolous by this court. Galer v.

Johnson, No. 00-50904 (5th Cir. Dec. 13, 2000)(unpublished).

Galer thus already has four strikes for purposes of 28 U.S.C.

§ 1915(g), which limits a litigant’s ability to proceed IFP in

civil actions and appeals in federal courts following attainment

of three-strike status. The dismissal of Galer’s action as

frivolous in the instant case and the dismissal of Galer’s appeal

count as two more strikes, bringing Galer’s total to six. No. 00-21026 -3-

Galer achieved three-strike status on December 13, 2000.

Galer is not precluded from proceeding IFP under 28 U.S.C. §

1915(g) in the current case because he filed his notice of

appeal, the district court issued the bad-faith certification,

and Galer mailed his IFP motion before he achieved three-strike

status. Galer is admonished that he achieved three-strike status

on December 13, 2000, and that he may not proceed IFP in any

civil action or appeal brought after December 13, 2000, unless he

“is under imminent danger of serious physical injury.” 28 U.S.C.

§ 1915(g).

IFP MOTION DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL

DISMISSED, 5TH CIR. R. 42.2; SANCTIONS NOTIFICATION ISSUED.