Ruiz v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-20938
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20938 Conference Calendar

DAVID RUIZ ET AL.,

Plaintiffs, RONALD R. JOHNSON, JR.,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, Intervenor-Plaintiff-Appellee,

JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division; ALLEN B. POLUNSKY; CAROLE S. YOUNG; WILLIAM H. MOODY; JOHN DAVID FRANZ; NANCY PATTON; CAROL VANCE; PATRICIA DAY; ALFRED C. MORAN; ALFRED M. STRINGFELLOW,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-78-CV-987 -------------------- August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Ronald R. Johnson, Jr., Texas inmate #783093, moves this

court for leave to appeal in forma pauperis (IFP) from the

district court’s July 1998 order that controls all pro se motions

arising in the Ruiz class action. "To proceed on appeal [IFP], a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20938 -2-

litigant must be economically eligible, and his appeal must not

be frivolous." Jackson v. Dallas Police Dep't, 811 F.2d 260, 261

(5th Cir. 1986).

Johnson does not meet the latter prong of this standard for

the following reasons. His appeal is untimely. See FED. R. APP.

P. 4(a). He lacks standing in the class action. See Gillespie

v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc);

Walker v. City of Mesquite, 858 F.2d 1071, 1074 (5th Cir. 1988).

Additionally, the order from which he desires to appeal is an

unappealable nonfinal order that does not fall under the

collateral order doctrine. See Coopers & Lybrand v. Livesay, 437

U.S. 463, 468-69 (1978); North Am. Acceptance Corp. Sec. Cases v.

Arnall, Golden & Gregory, 593 F.2d 642, 643-45 (5th Cir. 1979);

FED. R. CIV. P. 23(d).

In light of these impediments to Johnson’s appeal, his

appeal is frivolous. See 5TH CIR. R. 42.2. IT IS ORDERED that

IFP is DENIED and the appeal is DISMISSED as FRIVOLOUS.

IFP DENIED. APPEAL DISMISSED.