Ivory Simon v. James LeBlanc

Filing

UNPUBLISHED OPINION FILED. [16-30073 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 05/30/2017; denying motion for summary judgment filed by Appellant Ms. Ivory Lane Simon [8229697-2] [16-30073]

Case: 16-30073

Document: 00513983442

Page: 1

Date Filed: 05/08/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30073
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 8, 2017
Lyle W. Cayce
Clerk

IVORY LANE SIMON,
Plaintiff–Appellant,
v.
ELORIS ANDERSON,
Defendant–Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:14-CV-586
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Ivory Lane Simon, Louisiana prisoner # 505008, appeals from the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim
on which relief may be granted. In his complaint, Simon alleged that his right
to access the courts was violated because Eloris Anderson refused to mail his
application for a writ of certiorari to the United States Supreme Court in a
timely manner. Simon contended that, because of Anderson’s conduct, his writ

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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application—which was ultimately filed beyond the applicable deadline—was
returned as untimely.
Simon has failed to present any factual allegations or legal arguments
regarding his claims, explain his allegations, or identify an error in the district
court’s conclusion that his complaint should be dismissed. Moreover, he does
not articulate the reason that he deserves relief, cite to legal authority, or set
forth any applicable legal standards. See FED. R. APP. P. 28(a). While Simon
has filed copies of documents that appear in the district court record, he may
not incorporate by reference the content of those documents. See Yohey, v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, he has waived any
challenge to the district court’s judgment. See Brinkmann v. Dall. Cty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). His motion for summary
judgment by default based upon the failure of Anderson to file a responsive
brief is denied because the only sanction for an appellee’s failure to file a brief
is that she will not be heard at oral argument unless the court grants
permission. See FED. R. APP. P. 31(c).
For purposes of the three-strikes provision of 28 U.S.C. § 1915(g), the
district court’s dismissal counts as a strike. See Coleman v. Tollefson, 135 S.
Ct. 1759, 1763-64 (2015); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Simon has filed at least three other § 1983 complaints that have
been dismissed under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. See Simon
v. Deville, No. 1:15-CV-2789, 2016 WL 1230748 (W.D. La. Mar. 22, 2016);
Simon v. Morgan, No. 1:15-CV-1882, 2016 WL 166091 (W.D. La. Jan. 13, 2016);
Simon v. LeBlanc, No. 1:14-CV-2606, 2015 WL464426 (W.D. La. Feb. 3, 2015).
He therefore has accumulated three strikes for purposes of § 1915(g), and he is
prohibited from proceeding in forma pauperis in any civil action or appeal that

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is filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
Further, we warn Simon that frivolous, repetitive, or otherwise abusive
filings will invite the imposition of sanctions, which may include dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
and any court subject to this court’s jurisdiction. See Coghlan v. Starkey, 852
F.2d 806, 817 n.21 (5th Cir. 1988) (per curiam). Simon should review any
pending appeals and actions and move to dismiss any that are frivolous.
AFFIRMED; MOTION DENIED; § 1915(g) BAR IMPOSED; SANCTION
WARNING ISSUED.

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