Swartz v. Kennedy

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-10982 Summary Calendar

RICHARD ALLEN SWARTZ,

Plaintiff-Appellant,

versus

LAWRENCE KENNEDY, Senior Pastor, ET AL.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:94-CV-2731-T - - - - - - - - - - June 12, 1997 Before HIGGINBOTHAM, DUHE’ and BARKSDALE, Circuit Judges.

PER CURIAM:*

Richard Allen Swartz, Texas inmate #9610-5238, moves for

leave to proceed in forma pauperis (IFP) on appeal under the

Prison Litigation Reform Act of 1995 (PLRA). The PLRA requires a

prisoner appealing IFP in a civil action to pay the full amount

of the filing fee, $105. As Swartz does not have funds for

immediate payment of this fee, he is assessed an initial partial

filing fee of $57.17, in accordance with 28 U.S.C. § 1915(b)(1).

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-10982 - 2 -

Following payment of the initial partial filing fee, funds shall

be deducted from Swartz’s prisoner account until the full filing

fee is paid. See § 1915(b)(2).

IT IS ORDERED that Swartz pay the appropriate initial filing

fee to the Clerk of the District Court for the Northern District

of Texas. Swartz shall authorize the appropriate prison

authorities to withdraw this fee from his trust fund account in

accordance with their policy and local procedures and to forward

the fee to the Clerk of the District Court for the Northern

District of Texas. IT IS FURTHER ORDERED that the agency having

custody of Swartz’s inmate account shall collect the remainder of

the $105 filing fee and forward for payment, in accordance with

§ 1915(b)(2), to the Clerk of the District Court for the Northern

District of Texas each time the amount in Swartz’s account

exceeds $10, until the appellate filing fee is paid.

Swartz challenges the district court’s dismissal of his

complaint for failure to state a claim for which relief can be

granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). He argues that the

court erred by failing to consider his attempts to amend his

complaint and analyze the complaint for claims pursuant to 42

U.S.C. §§ 1985, 2000-bb; the Uniform Commercial Code; the tort of

fraud; and the First and Fifth Amendments. Even if the court had

considered the allegations in light of these possible causes of

action, no harm ensued. We have carefully reviewed the appellate

record, and we conclude that Swartz’s asserted claims are legally No. 96-10982 - 3 -

frivolous because they have no arguable basis in federal law.

They also fail to state a claim for which relief can be granted.

This appeal is frivolous and is therefore DISMISSED. See

5th Cir. R. 42.2. We note the warning given to Swartz in the

related appeal, Swartz v. Texas Bd. of Pardons & Paroles, No. 96-

11047 (5th Cir. _____, 1997), concerning the consequences of

future frivolous appeals. Swartz’s remaining motions are hereby

DENIED.

APPEAL DISMISSED. IFP GRANTED. INITIAL PARTIAL FILING FEE

ASSESSED. OTHER MOTIONS DENIED.