eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2023-03

Owl Feather-Gorbey v. United States ( 2023 )


Menu:
 
  • Case: 22-10802        Document: 00516696593             Page: 1      Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
No. 22-10802                                     Fifth Circuit
____________                                    FILED
March 31, 2023
Michael S. Owl Feather-Gorbey,                                               Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
United States of America, Administrator, FBOP Designation
Center, Grand Prairie Texas,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-CV-566
______________________________
Before Haynes, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
Michael S. Owl Feather-Gorbey, federal prisoner # 33405-013, filed a
complaint that the district court construed, in part, to allege due process
violations under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics,
    403 U.S. 388
     (1971). Feather-Gorbey also moved to proceed in
forma pauperis (IFP). The district court dismissed the complaint as barred
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10802      Document: 00516696593           Page: 2    Date Filed: 03/31/2023
No. 22-10802
by the three strikes rule in
    28 U.S.C. § 1915
    (g). It then denied Feather-
Gorbey’s motions for reconsideration under Federal Rule of Civil Procedure
59(e). Feather-Gorbey subsequently filed a Federal Rule of Civil Procedure
60(b) motion for reconsideration. After the magistrate judge recommended
denial of the Rule 60(b) motion, Feather-Gorbey filed a conditional notice of
appeal stating that he seeks to appeal if the district court denies his motion
for reconsideration and his request to proceed under § 1915(g). To this date,
the district court has not accepted the magistrate judge’s recommendation
or otherwise ruled on the Rule 60(b) motion.
We construe Feather-Gorbey’s notice of appeal as an attempt to
challenge the district court’s denial of his still-pending Rule 60(b) motion.
Because he seeks to appeal a non-final, prospective ruling of the district
court, the notice of appeal is premature, and this court lacks jurisdiction over
the appeal. See United States v. Cooper,
    135 F.3d 960
    , 961-63 (5th Cir. 1998);
Mosley v. Cozby,
    813 F.2d 659
    , 660 (5th Cir. 1987).
Accordingly, the appeal is DISMISSED, and Feather-Gorbey’s IFP
motion in this court is DENIED as unnecessary.              If Feather-Gorbey
chooses, he may perfect a timely appeal from the district court’s ruling on his
Rule 60(b) motion if it is denied. See Mosley,
    813 F.2d at 660
    . However, he
is CAUTIONED that he is still subject to the § 1915(g) bar and that any
future frivolous or repetitive filings in this court or any court subject to this
court’s jurisdiction may subject him to additional strikes or sanctions, as will
the failure to withdraw any pending matters that are frivolous, repetitive, or
otherwise abusive. We further remind Feather-Gorbey that until the $100
sanction imposed in Feather-Gorbey v. NFN NLN, No. 20-10863, is paid, he
is barred from filing any pleading in this court or in any court subject to this
court’s jurisdiction without the advance written permission of a judge of the
forum court.
2