Lyle v. Price

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 5, 2000
• Docket: 99-60392
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_________________

No. 99-60392 Summary Calendar _________________

JAMES M. LYLE, IV, Plaintiff-Appellant,

versus

JOE PRICE, ET AL Defendants,

JOE PRICE, Sheriff; RICK GASTON, Captain; BRUCE CARVER; NACAISE, Deputy; RICARDO DEDEAUX, Deputy; MIKE HALL; CRANE, DR.; JACKIE NEELY, Nurse; BOARD OF SUPERVISORS,

Defendants-Appellees.

**********************************

- - - - - - - - - - - CONSOLIDATED WITH No. 99-60202 - - - - - - - - - - -

JAMES M. LYLE, IV,

Plaintiff-Appellant,

STEVE PUCKETT, MDOC Commissioner; JOE BOND, Postal Inspector, SMCI; UNKNOWN ASHBY, Sergeant; UNKNOWN CRAWFORD, Female Sergeant; UNKNOWN RYALS, CO-1; BETTY CREECH; FLORENCE JONES; UNKNOWN PROPER SMCI AUTHORITIES AND OFFICIALS; UNKNOWN BAILEY, Colonel,

- - - - - - - - - - - - - - Appeals from the United States District Court for the Southern District of Mississippi USDC No. 1:95-CV-296-RR c/w USDC No. 2:95-CV-428-PG - - - - - - - - - - - - - - - No. 99-60392 c/w No. 99-60202 -2-

June 1, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The motion of James Lyle IV, Mississippi prisoner # 02386,

to proceed in forma pauperis is GRANTED. Further, his motion to

consolidate appeals No. 99-60392 and No. 99-60202 is GRANTED.

Lyle’s motion to reinstate and consolidate other closed appeals

is DENIED. His motion to file reply out of time is GRANTED.

Lyle has moved for leave to appeal in forma pauperis (IFP)

the district courts’ denials of his motions under Fed. R. Civ. P.

60(b) in the above-captioned cases. The motions sought to

convince the district courts that Lyle was not in fact barred

from proceeding IFP in the district court due to the three-

strikes provision of 28 U.S.C. § 1915(g). The district court

further denied Lyle leave to appeal IFP due to the three-strikes

bar. Recognizing that Lyle’s motions raised significant

questions about the three-strikes designation, we granted Lyle

leave to challenge the district court’s denial of IFP under the

provisions of 28 U.S.C. § 1915(b). The district court has made

the appropriate assessments for payment of the filing fees in

both appeals, and the motions are now before us as a challenge to

the district court’s determination that Lyle’s appeals are

barred, under § 1915(g), unless he pays the full filing fee in

advance.

* 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. 99-60392 c/w No. 99-60202 -3-

Although we grant Lyle’s motions to appeal IFP, we pretermit

deciding whether Lyle’s litigation history, at the time his cases

were dismissed, supported the district courts’ determinations.

Even if those courts erred in designating Lyle’s prior cases as

strikes under § 1915(g), Lyle has foregone his right to challenge

the underlying rulings. Lyle’s appeals of the original

dismissals of his district court cases were dismissed for failure

to prosecute; Lyle did not pay the full filing fee nor did he

attempt to challenge the three-strikes determination at that

time. The current appeals are before us as denials of Rule 60(b)

relief.

The denial of a Rule 60(b) motion for relief from judgment

does not bring up the underlying judgment for review. In re Ta

Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.

1984). We review the denial of such a motion only for abuse of

discretion. Travelers Ins. Co. v. Liljeberg Enterprises, Inc.,

38 F.3d 1404, 1408 (5th Cir. 1994). Lyle’s arguments do not fit

under the first five subsections of Rule 60(b), and the “broad

power” of Rule 60(b)(6) “is not for the purpose of relieving

party from free, calculated, deliberate choices he has made. A

party remains under a duty to take legal steps to protect his own

interests. In particular, it ordinarily is not permissible to

use this motion to remedy a failure to take an appeal.” United

States v. O’Neil, 709 F.2d 361, 373 n.12 (5th Cir. 1983)

(citations and internal quotations omitted).

Lyle made the same arguments in his Rule 60(b) motions that

he made prior to dismissal of the underlying actions. Rather No. 99-60392 c/w No. 99-60202 -4-

than challenge the district court’s three-strikes designation on

appeal, as he has done in the instant appeals, Lyle returned to

the district court and filed Rule 60(b) motions. Such motions

cannot substitute for an appeal, nor can they extend the time for

appeal. See Lancaster v. Presley, 35 F.3d 229, 231 (5th Cir.

1994). We cannot say that the district court abused its

discretion in denying Rule 60(b) motions that did no more than

reiterate arguments that had been made prior to dismissal.

Accordingly, we dispense with further briefing and AFFIRM the

rulings of the district courts in these consolidated cases.

AFFIRMED; MOTIONS TO PROCEED IN FORMA PAUPERIS GRANTED; MOTION TO CONSOLIDATE GRANTED; MOTION TO FILE REPLY OUT OF TIME GRANTED; MOTIONS TO REINSTATE AND CONSOLIDATE DENIED.