Noiel v. McKee

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40716 Conference Calendar

JEFFREY D. NOIEL,

Plaintiff-Appellant,

versus

HARRY W. MCKEE,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:96-CV-299 - - - - - - - - - - April 17, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jeffrey D. Noiel, Texas prisoner # 495518, appeals the

dismissal of his civil rights complaint as frivolous. He has

filed a motion for leave to proceed in forma pauperis (IFP) on

appeal. The motion for leave to appeal IFP is GRANTED.

Noiel is not required to pay an initial partial filing fee;

however, he shall make monthly payments of twenty percent of the

preceding month’s income credited to his account. See 28 U.S.C.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-40716 - 2 -

§ 1915(a). The agency having custody of Noiel is directed to

forward payments from his prisoner account to the clerk of the

district court each time the amount in his account exceeds $10

until the filing fee is paid. See id.

Noiel filed his complaint against Magistrate Judge Harry W.

McKee. Judicial officers such as Magistrate Judge McKee are

entitled to absolute immunity from damage claims under 42 U.S.C.

§ 1983 arising out of acts performed in the exercise of their

judicial functions. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.

1993).

Noiel’s appeal is without arguable merit and thus frivolous.

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

Because the appeal is frivolous, it is DISMISSED. See 5th Cir.

R. 42.2. Noiel now “has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or

appeal in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a

claim upon which relief may be granted.” 28 U.S.C. § 1915(g).

Accordingly, Noiel is barred from proceeding IFP in a civil

action unless he is under imminent danger of serious physical

injury. Id.

APPEAL DISMISSED. SANCTION IMPOSED.