Alisha Morris-O'Brien v. Endicott

Case: 17-11333 Document: 00514800118 Page: 1 Date Filed: 01/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11333 FILED
January 17, 2019
Lyle W. Cayce
ALISHA MORRIS-O’BRIEN, Clerk
Plaintiff - Appellant
v.
CORPORAL ENDICOTT; BEN; JACKIE; COLLEEN BOOKER; LAWRENCE
HURTT; KACIE HARVEY; LUBBOCK CHILDREN’S HOME; LAWANAD
DIXSON; STATE OF TEXAS; SHAWN VANDERGUTT; KARA DARNELL;
AMY PATTON; SHEREE RUSSEL; SAMUAL CUMMING; DEPARTMENT
OF FAMILY AND PROTECTIVE SERVICES; SUSAN BROWN; JUDITH
MADERA; KAY CABBRELLO; CLARENCE WHITE; TONYA BROUCHER
CONN; 7TH COURT OF APPEALS; UNITED STATES MARSHALL’S
OFFICE; POLICE DEPARTMENT OF LUBBOCK; BEN BOOKER,
Defendants - Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:17-CV-130
Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Alisha Morris-O’Brien, Lubbock County Detention Center inmate
# 111041, moves to proceed in forma pauperis (IFP) from the dismissal of her
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-11333 Document: 00514800118 Page: 2 Date Filed: 01/17/2019
No. 17-11333
civil rights complaint and the denial of her motion to seal. As a threshold
matter, Morris-O’Brien’s notice of appeal was filed four months after the
district court’s order dismissing her complaint. This court must sua sponte
examine the basis of its jurisdiction if necessary. Mosley v. Cozby, 813 F.2d
659, 660 (5th Cir. 1987). Because Morris-O’Brien’s appeal is untimely as to the
dismissal of the complaint, this court lacks jurisdiction over it. See Hamer v.
Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16 (2017); Bowles v.
Russell, 551 U.S. 205, 214 (2007); 28 U.S.C. § 2107(a). Moreover, Morris-
O’Brien’s appeal of the denial of the motion to seal is frivolous. Accordingly,
her motion for leave to proceed IFP on appeal and motion to stay district court
proceedings are DENIED. Morris-O’Brien’s appeal of the dismissal of her
complaint is DISMISSED for lack of jurisdiction. See Hamer, 138 S. Ct. at 16.
Her appeal of the denial of her motion to seal is DISMISSED as frivolous.
Morris-O’Brien’s motions to supplement the record, motion to place medical
records under seal, motion for summary judgment, and motion for all damages
are DENIED.
As we recognized on September 10, 2018, Morris-O’Brien has
accumulated at least three strikes for purposes of 28 U.S.C. § 1915(g). Morris
v. Lubbock County Detention Center, 737 F. App’x 213, 214 (5th Cir. 2018);
Morris v. Texas Boys Ranch, 737 F. App’x 216, 217 (5th Cir. 2018); Morris v.
L.C.D.C., 737 F. App’x 218, 219 (5th Cir. 2018). We have not applied the
§ 1915(g) bar here because Morris-O’Brien filed this appeal before the
accumulation of three strikes. See § 1915. However, we reiterate that Morris-
O’Brien is barred under § 1915(g) from proceeding IFP in any civil action or
appeal filed while she is incarcerated or detained in any facility unless she is
under imminent danger of serious physical injury. See id.
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