Warren Black v. Rissie Owens, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [10-10054 Dismissed as Frivolous] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/09/2010; denying motion to appoint counsel filed by Appellant Mr. Warren Edward Black [6583568-2]; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Warren Edward Black [6559646-2] [10-10054]

Warren Black v. Rissie Owens, et al Case: 10-10054

Document: 00511298091 Page: 1 Date Filed: 11/18/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10054 S u m m a r y Calendar November 18, 2010 Lyle W. Cayce Clerk

W A R R E N EDWARD BLACK, P la in t if f -A p p e lla n t v. R I S S I E OWENS, Chairperson Parole Board; MICHAEL ADAMS, Hearing O ffic e r ; MARESHEI DELANEY, Supervisor Parole Officer, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CV-1445

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* W a r r e n Edward Black, Texas prisoner # 248326, seeks leave to proceed in fo r m a pauperis (IFP) on appeal of the district court's dismissal of his civil action a s frivolous and for failure to state a claim upon which relief can be granted. By moving for leave to proceed IFP, Black is challenging the district court's c e r t ific a t io n that his appeal is not taken in good faith because it is frivolous. See

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 10-10054 Document: 00511298091 Page: 2 Date Filed: 11/18/2010 No. 10-10054 B a u g h v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F ED. R. APP. P. 24(a)(5). B la c k argues that he has a constitutional right to appeal IFP. He also a r g u e s the merits of his substantive claims that his constitutional rights were v io la t e d because he was not appointed counsel for his parole revocation hearing. He seeks appointment of counsel on appeal. T h e r e is no constitutional right to proceed in a civil action without paying t h e proper filing fee; the ability to proceed IFP is a privilege that may be e x t e n d e d or withdrawn. Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir. 1997). While Black argues the merits of his substantive claims, he does not address the r e a s o n in g behind the district court's dismissal, that his claims were barred by H e c k v. Humphrey, 512 U.S. 477, 486-87 (1994). As Black does not address the d is t r ic t court's rationale for dismissing his § 1983 action, he has waived any c h a lle n g e he could bring to the dismissal of his § 1983 action. See Brinkmann v . Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). B la c k 's appeal is without arguable merit and is frivolous. See Howard v. K in g , 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the a p p e a l is dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. Black's m o t io n for appointment of counsel is also denied. See Cooper v. Sheriff, Lubbock C o u n ty , Tex., 929 F.2d 1078, 1084 (5th Cir. 1991). Black is cautioned that the dismissal of this appeal as frivolous and the d is t r ic t court's dismissal of the complaint both count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He is cautioned that if he accumulates three strikes under § 1915(g), he will be u n a b le to proceed 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 o f serious physical injury. See § 1915(g). I F P MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING I S S U E D ; MOTION FOR APPOINTMENT OF COUNSEL DENIED. 2