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Harmon v. TDCJ - Inst Div ( 2000 )


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  •                            No. 99-40382
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40382
Conference Calendar
LEONARD B. HARMON,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-464
- - - - - - - - - -
April 13, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Leonard B. Harmon, Texas state prisoner # 661460, appeals
the district court’s dismissal as frivolous of a 42 U.S.C. § 1983
complaint challenging the prison’s grooming policy.    Harmon
asserted that the grooming policy violated his First Amendment
rights to freedom of expression and exercise of religion.    On
appeal, he argues that the district court committed the following
errors: (1) it did not follow the proper rules and procedures;
*
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that this opinion should not be published and is not precedent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. 99-40382
-2-
(2) it erred when it dismissed his complaint as frivolous and
denied his motion for a preliminary injunction/temporary
restraining order; (3) it erred when it denied his first and
second motions to alter or amend judgment; (4) it erred when it
treated his motion to object to the finding of the court and
request to amend the judgment as a third motion to alter or amend
judgment; and (5) it erred when it denied his motion to recuse
the district court and magistrate judges.   Harmon also filed a
motion to expedite the appeal or, in the alternative, to grant an
injunction pending appeal.    This motion is DENIED.
Harmon did not file a timely notice of appeal from the
dismissal of his § 1983 complaint because it was not filed within
30 days of the denial of his first Fed. R. Civ. P. 59(e) motion
to alter or amend judgment.    See Fed. R. App. P. 4(a)(4)(A)(iv);
see Nelson v. Foti,
    707 F.2d 170
    , 171 (5th Cir. 1983)(timely
notice of appeal is a necessary precondition to the exercise of
appellate jurisdiction).   He did, however, file a timely notice
of appeal from the district court’s denial of his Fed. R. Civ. P.
60(b) motion.   Thus this court has jurisdiction to consider the
issues raised in Harmon’s Rule 60(b) motion.    See Williams v.
Chater,
    87 F.3d 702
    , 705 (5th Cir. 1996).
Harmon fails to adequately brief the issues on appeal.    He
relies on conclusional assertions without identifying specific
errors and attempts to incorporate by reference arguments from
his objections to the magistrate judge’s report and
recommendation.   See Al-Ra’id v. Ingle,
    69 F.3d 28
    , 31, 32 (5th
Cir. 1995); Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir.
No. 99-40382
-3-
1993).   Moreover, this court has already addressed the central
issue on appeal and held that the prison grooming policy is
rationally related to a legitimate state interest and does not
create a cause of action under § 1983.     See Scott v. Mississippi
Dept. of Corrections,
    961 F.2d 77
    , 80-81 (5th Cir. 1992); Powell
v. Estelle,
    959 F.2d 22
    , 23-26 (5th Cir. 1992).    The district
court did not abuse its discretion when it denied Harmon’s Rule
60(b) motion.   See Leedo Cabinetry v. James Sales & Distribution,
Inc.,
    157 F.3d 410
    , 412 (5th Cir. 1998).
Harmon’s appeal is without arguable merit and is frivolous.
See Howard v. King,
    707 F.2d 215
    , 219, 220 (5th Cir. 1983).
Accordingly it is DISMISSED.   See 5TH CIR. R. 42.2.   The district
court’s dismissal as frivolous and this court’s dismissal of
Harmon’s appeal as frivolous count as two “strikes” against him
for purposes of 28 U.S.C. § 1915(g).     See Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996).   Harmon has previously
accumulated two strikes for frivolous appeals.     See Harmon v.
Texas Dept. of Criminal Justice, No. 97-41512 (5th Cir. June 11,
1998); Harmon v. United States Court of Appeals, for the Fifth
Circuit, No. 97-31106 (5th Cir. May 28, 1998).    Because he now
has at least three strikes under the statute, Harmon may not
proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury.      § 1915(g).
APPEAL DISMISSED; MOTION DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED.