Lusk v. Warner

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 1, 2021
• Docket: 19-20755
• Status: Unpublished

Opinion

Case: 19-20755 Document: 00515761453 Page: 1 Date Filed: 03/01/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 1, 2021 No. 19-20755 Lyle W. Cayce Clerk Charles E. Lusk,

Plaintiff—Appellant,

versus

Carlisietta R. Warner, Sergeant, O.B. Ellis I Unit; Alicia Scott, Property Officer, O.B. Ellis I Unit,

Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-831

Before Stewart, Graves and Higginson, Circuit Judges. Per Curiam:* Charles E. Lusk, Texas prisoner # 1964427, has moved for leave to proceed in forma pauperis (IFP) in this appeal from the denial of his motion under Fed. R. Civ. P. 60(b)(6) for relief from the district court’s judgment dismissing his civil rights action.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-20755 Document: 00515761453 Page: 2 Date Filed: 03/01/2021

No. 19-20755

By moving this court for leave to proceed IFP, Lusk is challenging the district court’s determination that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A motion for leave to proceed IFP on appeal “must be directed solely to the trial court’s reasons for the certification decision.” Id. at 202. This court’s inquiry into good faith “is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). Lusk has failed to show that he has a nonfrivolous argument that the district court abused its discretion in determining that Lusk had failed to identify extraordinary circumstances justifying relief and that his Rule 60(b)(6) motion had not been filed within a reasonable time. See Hess v. Cockrell, 281 F.3d 212, 215-16 (5th Cir. 2002). The motion for leave to proceed IFP on appeal is DENIED, and the appeal is DISMISSED AS FRIVOLOUS. See 5th Cir. R. 42.2; Baugh, 117 F.3d at 202 n.24.