Ralph Smith v. Neita Hullum, et al
UNPUBLISHED OPINION ORDER FILED. [11-50205 Dismissed as Frivolous] Judge: EMG , Judge: LHS , Judge: CH Mandate pull date is 10/25/2011; denying motion to appoint counsel filed by Appellant Mr. Ralph B. Smith [6782996-2]; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Ralph B. Smith [6770779-2] [11-50205]
Date Filed: 10/04/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
October 4, 2011
Lyle W. Cayce
RALPH B. SMITH,
NEITA HULLUM; JULIE THALER; DIRECTORS REVIEW COMMITTEE;
STEPHANIE HIDRAGO; KAY SHEELEY,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:09-CV-3
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
Ralph B. Smith, Texas prisoner # 855314, seeks leave to proceed in forma
pauperis (IFP) on appeal of the district court’s dismissal in part and grant of
summary judgment to the defendants in part of his 42 U.S.C. § 1983 action. By
moving for leave to proceed IFP, Smith is challenging the district court’s
certification 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 10/04/2011
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.
R. APP. P. 24(a)(5).
Smith argues that the district court erred by not granting him a default
judgment because the defendants did not file a timely answer. However, a
district judge has discretion to determine that a default judgment “should not
be granted on the claim, without more, that the defendant had failed to meet a
procedural time requirement.” Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir.
2000) (internal quotation marks and citation omitted). Since Smith has failed to
make the necessary showing, the district court did not abuse its discretion.
Because Smith’s appeal is frivolous, the IFP motion is denied, and the appeal is
dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. Smith’s motion for
appointment of counsel is also denied. See Cooper v. Sheriff, Lubbock County,
Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
The dismissal of this appeal as frivolous counts as a strike under § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996). As Smith has
now accumulated three strikes, he is barred from proceeding in forma pauperis
pursuant to § 1915 while he is incarcerated or detained in any facility unless he
is under imminent danger of serious physical injury. See § 1915(g); Smith v.
Sheeley, No. 6:09-CV-002, slip op. at 1 (W.D. Tex. Aug. 20, 2009) (unpublished);
Smith v. Owens, No. 5:09-CV-181, slip op. at 1 (E.D. Tex. Mar. 8, 2010)
IFP MOTION DENIED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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