Perkins v. Johnson ( 2004 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                December 17, 2004
    Charles R. Fulbruge III
    Clerk
    No. 04-10578
    Conference Calendar
    EDWIN BERNARD PERKINS,
    Plaintiff-Appellant,
    versus
    GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    INSTITUTIONAL DIVISION; MAC SPRINGFELLOW, Chairman, Texas
    Department of Criminal Justice; JOHN CORNYN, Attorney General of
    Texas,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:01-CV-1762-R
    --------------------
    Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Edwin Bernard Perkins, Texas inmate # 699746, has filed a
    motion in this court to proceed in forma pauperis (“IFP”) in the
    appeal of the denial of his motion to reinstate his civil rights
    complaint.     In the belief that his May 14, 2004, notice of appeal
    was not effective, Perkins filed a “Motion to Relinquish Appeal.”
    Because Perkins’s May 14, 2004, notice of appeal is effective, we
    *
    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    this opinion should not be published and is not precedent except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. 04-10578
    -2-
    DENY as unnecessary the “Motion to Relinquish Appeal.”        See FED.
    R. APP. P. 4(a)(4)(B)(i).
    The district court dismissed Perkins’s complaint without
    prejudice under FED. R. CIV. P. 41(a) pursuant to Perkins’s
    motion for voluntary dismissal, and it denied his motion to
    reinstate the complaint.    The district court certified that,
    pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP. P. 24(a)(3),
    Perkins’s appeal of the denial of the motion to reinstate was not
    taken in good faith.
    In his IFP motion, Perkins argues that the district court
    erred in refusing to reinstate his complaint.    He contends that
    the statute of limitations will bar him from pursuing some of his
    claims.   Perkins states that he delayed in moving to reinstate
    his complaint because he was under a legal disability, and he
    contends that he has acted in good faith and that the defendants
    would not be prejudiced were the complaint reinstated.
    Under FED. R. CIV. P. 41(a), the voluntary dismissal of an
    action completely terminates the litigation, without further
    order by the district court.    See Long v. Bd. of Pardons and
    Paroles of Texas, 
    725 F.2d 306
    , 306 (5th Cir. 1984).     “A
    voluntary dismissal without prejudice leaves the situation as if
    the action had never been filed.    After a dismissal the action is
    no longer pending in the court and no further proceedings in the
    action are proper.”    
    Id. at 307
    (internal quotation marks and
    No. 04-10578
    -3-
    citation omitted).   It is not error for a district court to
    refuse to reactivate a finally dismissed former action.     See 
    id. Perkins has
    not shown that he will raise a nonfrivolous
    issue on appeal or that the district court erred in certifying
    that his appeal was not taken in good faith.     See Howard v. King,
    
    707 F.2d 215
    , 219-20 (5th Cir. 1983).     Accordingly, Perkins’s
    motion for leave to proceed IFP is DENIED, and his appeal is
    DISMISSED as frivolous.   See Baugh v. Taylor, 
    117 F.3d 197
    , 202
    n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.
    The dismissal of this appeal as frivolous counts as a
    “strike” for purposes of 28 U.S.C. § 1915(g).     See Adepegba v.
    Hammons, 
    103 F.3d 383
    , 385-87 (5th Cir. 1996).     Perkins is WARNED
    that, if he accumulates three “strikes” pursuant to 28 U.S.C.
    § 1915(g), he may not proceed IFP 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.     See 28
    U.S.C. § 1915(g).
    MOTIONS DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
    

Document Info

Docket Number: 04-10578

Judges: King, Demoss, Clement

Filed Date: 12/17/2004

Precedential Status: Non-Precedential

Modified Date: 10/19/2024