Ellis v. United States ( 2023 )

Case: 22-10729 Document: 00516616238 Page: 1 Date Filed: 01/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-10729 January 19, 2023
____________ Lyle W. Cayce
Clerk
Priscilla A. Ellis,
Plaintiff—Appellant,
versus
United States of America; Michael Caravajal, Federal
Bureau of Prisons Director,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-992
______________________________
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam: *
Priscilla A. Ellis, federal prisoner # 03260-180, moves to proceed in
forma pauperis (IFP) on appeal following the district court’s denial of her
Federal Rule of Civil Procedure 60(b) motion and her motion to reconsider
the denial of the Rule 60(b) motion. These motions were filed following the
dismissal of her civil rights action for failure to timely comply with the district
court’s order to file an amended complaint using the court’s prisoner civil
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10729 Document: 00516616238 Page: 2 Date Filed: 01/19/2023
No. 22-10729
rights form. See Fed. R. Civ. P. 41(b). Ellis’s IFP motion challenges the
district court’s determination that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
whether the appeal is taken in good faith “is limited to whether the appeal
involves ‘legal points arguable on their merits (and therefore not
frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation
omitted).
In her appellate filings, Ellis largely discusses the merits of her
constitutional claims and mentions that she did not file an amended
complaint because she did not receive the order requiring her to do so.
However, even assuming her allegation to be true, Ellis had ample
opportunity to seek to comply with the district court’s order when she
learned of it shortly after the court imposed deadline. However, she did not
seek to comply then or in the ensuing 10 months leading to this appeal. Ellis
does not make the requisite showing that she has a nonfrivolous issue for
appeal. See Howard, 707 F.2d at 220. Accordingly, her motion to proceed
IFP is DENIED, and her appeal is DISMISSED as frivolous. See Baugh,
117 F.3d at 202 n.24; 5th Cir. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996), abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532,
537 (2015). Ellis is WARNED that if she accumulates three strikes, she will
not be permitted to proceed IFP in any civil action or appeal filed while
incarcerated or detained in any facility unless she is under imminent danger
of serious physical injury. See § 1915(g).
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