Williams v. Shrf Dept Iberia, et al

Filing 920060223

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 05-30598 Conference Calendar

PATRICK WAYNE WILLIAMS, Plaintiff-Appellant, versus SHERIFF'S DEPARTMENT, IBERIA PARISH; JOSEPH FURGUSON; SID HEBERT; ROBERTA BOUDREAUX; ROXY GATES; LT. DARCEY; CREIG DUNKIN; OFFICER THIBIDEAUX; OFFICER POLK; OFFICER LEBLANC; SGT. ROCHELLE; SGT. BOWERS; SGT. HAWKINS; LT. JAMES; KIM STELLY; MARY ANN DIXON; CHARLIE TRAHAN; KIRK V. COMEAUX, Defendants-Appellees. -------------------Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:04-CV-2619 -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Patrick Wayne Williams, Louisiana prisoner # 317402, has filed an appeal following the dismissal of his civil rights complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and the denial of his postjudgment motion for reconsideration. Williams's motion for

reconsideration is construed as a FED. R. CIV. P. 60(b) motion. See Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-30598 -2667 (5th Cir. 1986) (en banc). Because Williams's notice of

appeal was filed fewer than 30 days from the district court's denial of his Rule 60(b) motion but more than 30 days from the entry of judgment dismissing the underlying action, the notice of appeal is effective only as to the denial of the Rule 60(b) motion. See Edwards v. City of Houston, 78 F.3d 983, 995 (5th Under Rule 60(b)(6), the

Cir. 1996); FED. R. APP. P. 4(a)(4).

district court may relieve a party of a final judgment for any "reason justifying relief from the operation of the judgment." FED. R. CIV. P. 60(b)(6). We review for abuse of discretion.

See McCorvey v. Hill, 385 F.3d 846, 848 (5th Cir. 2004). Even if Williams did not timely receive a copy of the magistrate judge's report and recommendation, Williams gave the district court no reason justifying relief from the operation of the judgment. See Rule 60(b). The district court thus did not See McCorvey,

abuse its discretion by denying the motion. 385 F.3d at 848.

The district court's order denying Williams's Rule 60(b) motion is affirmed. The district court's dismissal of Williams's

civil rights complaint counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, The dismissal as frivolous of Williams's

387-88 (5th Cir. 1996).

appeal in Williams v. Pfizer Inc., No. 05-30532, decided this day, also counts as a strike for purposes of § 1915(g). We

caution Williams that if he accumulates three strikes, he may not

No. 05-30598 -3proceed in forma pauperis 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. Adepegba, 103 F.3d at 387-88. AFFIRMED; SANCTION WARNING ISSUED. See § 1915(g);