Pierre v. Guidry

75 F. App'x 300

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 17, 2003
• Docket: 03-30515
• Status: Unpublished

Opinion

PER CURIAM. *

Herbert A. Pierre, a Louisiana prisoner (#321310), challenges the district court’s denial of his application to proceed in for-ma pauperis (“IFP”) on appeal. The court had dismissed Pierre’s pro se, IFP complaint, purportedly filed under federal criminal statutes, as frivolous under 28 U.S.C. § 1915(e)(2)(B). By moving to proceed IFP on appeal, Pierre is challenging the district court’s certification that he should not be granted IFP status because his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a).

Pierre continues to urge that the defendants, a parish district judge, an assistant district attorney, and an indigent defender, be prosecuted under 18 U.S.C. §§ 241 and 242 for conspiring to violate his constitutional rights. He does not seek monetary damages or any other civil relief, and he disavows any intention of seeking civil-rights relief under 42 U.S.C. § 1983. As the magistrate judge concluded, Pierre has no right to bring a private action under federal criminal statutes. See Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Ali v. Shabazz, No. 93-2495, 1993 WL 456323 (5th Cir. Oct.28, 1993) (unpublished); 5th Cir. R. 47.5.3.

Pierre has failed to show that his complaint presented nonfrivolous issues for appeal. Accordingly, we uphold the district court’s order certifying that the appeal is not taken in good faith. Pierre’s request for IFP status is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5th Cir. R. 42.2. The dismissal of this appeal as frivolous counts as a “strike” for purposes of 28 U.S.C. § 1915(g), as does the district court’s dismissal of his complaint as frivolous. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). Pierre is cautioned that if he accumulates three strikes, he will not be permitted to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).

Pierre’s conclusory motion or request for “immediate protection” is DENIED.

IFP DENIED; MOTION FOR “IMMEDIATE PROTECTION” DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES BAR WARNING ISSUED.

* 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.