Harmon v. TDCJ - Inst Div

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 1998
• Docket: 19-70004
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41512 Summary Calendar

LEONARD B. HARMON,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Michael Unit,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CV-825 - - - - - - - - - - June 11, 1998 Before JONES, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Leonard B. Harmon, Texas prisoner # 661460, has filed a

motion to vacate the January 30, 1998, letter of the clerk of

this court advising him that he is required to comply with 28

U.S.C. § 1915 by filing a motion for leave to proceed in forma

pauperis (IFP) on appeal in the district court. Harmon argues

that the clerk abused his authority in issuing the above letter

and in not allowing him to proceed IFP on appeal without further

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41512 -2-

authorization pursuant to Rule 24 of the Federal Rules of

Appellate Procedure. Harmon did not file an IFP motion in the

district court. The clerk’s January 30, 1998, letter correctly

advised Harmon that in order to proceed IFP on appeal he must

file an IFP motion in the district court. See 28 U.S.C.

§ 1915(b)(1); Morgan v. Haro, 112 F.3d 788, 789 (5th Cir. 1997).

Harmon’s motion to vacate the clerk’s January 30, 1998, letter is

DENIED.

Because Harmon failed to file an IFP motion in the district

court as directed by the clerk of this court and because he has

filed a frivolous motion to vacate the clerk’s January 30, 1998,

letter in an attempt to circumvent the requirements of § 1915(b),

Harmon’s appeal is dismissed as frivolous. See 5th Cir. R. 42.2;

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The

dismissal of this appeal as frivolous counts as a strike for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996). Additionally, Harmon is cautioned

that any future frivolous appeals or pleadings filed by him or on

his behalf will invite the imposition of sanctions. Harmon is

cautioned further to review any pending appeals and pleadings to

ensure that they do not raise arguments that are frivolous.

MOTION TO VACATE DENIED; APPEAL DISMISSED AS FRIVOLOUS;

SANCTION WARNING ISSUED.