Oliver Lister, II v. Todd Peterson, et al
UNPUBLISHED OPINION ORDER FILED. [12-50218 Dismissed as Frivolous] Judge: EHJ , Judge: JLD , Judge: CH. Mandate pull date is 01/02/2013; denying motion to appoint counsel filed by Appellant Mr. Oliver Eshman Lister, II [7201433-2]; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Oliver Eshman Lister, II [7160324-2] [12-50218]
Date Filed: 12/11/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
December 11, 2012
Lyle W. Cayce
OLIVER ESHMAN LISTER, II,
SERGEANT TODD PETERSON, John B. Connally Unit; LIEUTENANT
STEVEN HAVARD, John B. Connally Unit; SHIFT CAPTAIN JOHN DOE, John
B. Connally Unit; DISCIPLINARY HEARING CAPTAIN, John B. Connally
Unit; OFFICER FNU MARTINEZ, John B. Connally Unit; MAJOR DARREN B.
WALLACE, John B. Connally Unit; WARDEN PAUL MORALES; ASSISTANT
WARDEN JOEL BARBOSA, John B. Connally Unit; ASSISTANT WARDEN
CAROL MONROE, John B. Connally Unit,
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:10-CV-454
Before JONES, DENNIS, and HAYNES, Circuit Judges.
Oliver Eshman Lister, II, Texas prisoner # 1279183, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his 42 U.S.C. § 1983 action as frivolous and for failure to state a claim. He
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12/11/2012
argues in his one-page brief that he is entitled to proceed IFP because he did so
in the district court and because the interests of justice require it. That is the
entirety of Lister’s argument.
When a district court certifies that an appeal is frivolous and is not taken
in good faith under 28 U.S.C. § 1915(a)(3) and Rule 24(a)(3) of the Federal Rules
of Appellate Procedure, a litigant may either pay the filing fee or challenge the
district court’s certification decision by filing a motion for leave to proceed IFP
in this court. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). If the court
upholds the district court’s certification that the appeal is not taken in good faith
and the litigant persists in the appeal, he must pay the appellate filing fee or the
appeal will be dismissed for want of prosecution. Id. at 202. If the appeal is
frivolous, this court may dismiss it sua sponte. Id. at 202 n.24; 5TH CIR. R. 42.2.
Because the district court certified that Lister’s appeal was not taken in
good faith, he is not entitled to proceed IFP on appeal merely because he did so
in the district court. See FED. R. APP. P. 24(a)(3)(A). Lister has briefed no other
issues for appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). This court denies the IFP motion and dismisses
the appeal as frivolous on those grounds. See 5TH CIR. R. 42.2.
The dismissal of this appeal counts as a strike, as does the district court’s
dismissal of Lister’s action. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996). The district court previously dismissed another of Lister’s civil rights
actions as frivolous and for failure to state a claim. Lister v. Smith, No. 5:07-CV754 (W.D. Tex. Mar. 26, 2008) (unpublished). Because Lister has accumulated
three strikes, he may not proceed IFP in a civil action or appeal unless he “is
under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Finally, we deny Lister’s motion for appointment of counsel.
IFP DENIED. APPEAL DISMISSED. 28 U.S.C. § 1915(g) SANCTION
BAR IMPOSED. APPOINTMENT OF COUNSEL DENIED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?