McGlohon v. City of Dallas TX , 168 F. App'x 623 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-10901
Conference Calendar
BRENDA DAVID, ET AL.,
Plaintiffs,
DOUGLAS S. MCGLOHON,
Plaintiff-Appellant,
versus
CITY OF DALLAS, TEXAS, ET AL.,
Defendants,
CITY OF DALLAS, TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:76-CV-834
USDC No. 3:76-CV-1593
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Douglas S. McGlohon moves this court for leave to proceed in
forma pauperis (IFP) on appeal following the denial of his FED.
R. CIV. P. 60(b) motion filed approximately eight years after the
final judgment in this 42 U.S.C. § 1983 action. McGlohon’s
*
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this opinion should not be published and is not precedent except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.
No. 04-10901
-2-
motion is construed as a challenge to 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). If the
appeal is frivolous, this court may dismiss it sua sponte under
5TH CIR. R. 42.2. Baugh, 117 F.3d at 202 n.24.
McGlohon has not shown that his appeal involves legal points
arguable on their merits. See Howard, 707 F.2d at 220. McGlohon
has not shown that extraordinary circumstances warrant relief
from the operation of the judgment. See Rule 60(b)(6). McGlohon
also failed to provide a valid reason for the lateness of his May
2003 postjudgment challenge to the January 1995 judgment; he has
not shown that he could not have learned earlier of the grounds
relied upon or that the defendants would not be prejudiced. See
Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410
(5th Cir. 1994). The district court did not abuse its discretion
by denying McGlohon’s Rule 60(b) motion filed eight years after
the entry of the final judgment. See McCorvey v. Hill, 385 F.3d
846, 848 (5th Cir. 2004), cert. denied, 125 S. Ct. 1387 (2005).
McGlohon’s request for IFP status is denied, and his appeal
is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2. McGlohon is warned that filing future frivolous
actions or appeals may result in the imposition of sanctions.
No. 04-10901
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See Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir.
1995).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.