William Gaskin v. Christopher Epps, Commissioner, et al

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UNPUBLISHED OPINION ORDER FILED. [16-60182 Dismissed for Lack of Jurisdiction] Judge: EBC, Judge: ECP, Judge: SAH; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. William Lewis Gaskin [8179548-2] [16-60182]

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Case: 16-60182 Document: 00513925391 Page: 1 Date Filed: 03/24/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-60182 United States Court of Appeals Fifth Circuit FILED March 24, 2017 WILLIAM LEWIS GASKIN, Lyle W. Cayce Clerk Plaintiff-Appellant v. CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; DOCTOR RON WOODALL; DOCTOR GWEN WOODLAND, Defendants-Appellees Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:13-CV-527 Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * William Lewis Gaskin, Mississippi prisoner # T0251, moves this court for authorization to proceed in forma pauperis (IFP) on appeal from the magistrate judge’s order denying his motion to compel the defendants’ compliance with a discovery order in his 42 U.S.C. § 1983 civil rights suit, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-60182 Document: 00513925391 Page: 2 Date Filed: 03/24/2017 No. 16-60182 which had already been dismissed by the magistrate judge. 1 By moving to proceed IFP in this court, Gaskin challenges the magistrate judge’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The magistrate judge’s order denying Gaskin’s motion to compel is not an appealable final decision for purposes of 28 U.S.C. § 1291. See Periodical Publishers Serv. Bureau, Inc. v. Keys, 981 F.2d 215, 217 (5th Cir. 1993) (“Discovery orders are not generally appealable because usually they are not final decisions within the meaning of 28 U.S.C. § 1291.”). Gaskin’s notice of appeal was not timely as to the magistrate judge’s final judgment granting summary judgment for the defendants and dismissing Gaskin’s § 1983 complaint with prejudice. See FED. R. APP. P. 4(a)(1) (setting a 30-day period for noticing an appeal). Gaskin did not seek to enlarge the time to appeal, and he conceded in a post-judgment motion for reconsideration that he received See FED. R. APP. P. 4(a)(5)(A), (a)(6). timely notice of the final judgment. Because this court lacks jurisdiction over the untimely appeal, see FED. R. APP. P. 4(a); In re Deepwater Horizon, 785 F.3d 1003, 1009 (5th Cir. 2015), the appeal does not involve legal points arguable on their merits and Gaskin’s motion to proceed IFP on appeal is therefore DENIED. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His untimely appeal is DISMISSED FOR LACK OF JURISDICTION. See FED. R. APP. P. 4(a)(1); Deepwater Horizon, 785 F.3d at 1009. The proceedings were conducted by the magistrate judge with the consent of the parties. See 28 U.S.C. § 636(c). 1 2

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