Donald Howard v. David Langston

Case: 13-40890 Document: 00512627962 Page: 1 Date Filed: 05/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40890 FILED
May 13, 2014
Lyle W. Cayce
DONALD R. HOWARD, Clerk
Plaintiff-Appellant
v.
DAVID LANGSTON; GARY WRIGHT; VIRGINIA SCHAFER; TARA
PATTON; LORI FORTNER; ET AL,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:12-CV-250
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Donald R. Howard, Texas prisoner # 1397355, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his postjudgment motions
to amend his complaint, withdraw his consent to proceed before the magistrate
judge, file a supplemental complaint, and proceed IFP in the district court.
Prior to his filing of those motions, this court dismissed as frivolous his appeal
from the final judgment on his original complaint in this case. Howard v.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-40890
Langston, 544 F. App’x 427 (5th Cir. 2013), cert. denied, 134 S. Ct. 1316 (2014).
In that opinion, we imposed the bar under 28 U.S.C. § 1915(g), which
prohibited Howard from proceeding 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. Id. at 428-29.
Howard contends that his supplemental complaint sufficiently alleged
an imminent danger of serious physical injury. He does not address the fact
that he moved to file the supplemental complaint after both the district court
and this court had already disposed of his case. See Vielma v. Eureka Co., 218
F.3d 458, 468 (5th Cir. 2000) (“Post-judgment amendment to a complaint can
only occur once the judgment itself is vacated under FED. R. CIV. P. 59 or 60.”).
He also makes no argument regarding the denial of his motion to amend his
complaint, and we do not consider his argument that his consent to proceed
before the magistrate judge expired upon retirement of the original magistrate
judge in this case, as he raises that argument for the first time here. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). This
appeal is without arguable merit and is dismissed as frivolous. See 5TH CIR.
R. 42.2. Howard’s motion for leave to proceed IFP on appeal is denied.
Howard has not heeded our previous warning against frivolous filings.
See Howard, 544 F. App’x at 428. Accordingly, it is ordered that Howard pay
a sanction in the amount of $100 to the Clerk of this Court. Until the sanction
has been paid in full, Howard is barred from filing any pleading in this court
or any court subject to this court’s jurisdiction, unless he first obtains leave of
the court in which he seeks to make the filing. We reiterate that Howard has
accumulated three strikes under § 1915(g) and 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. Howard is
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Case: 13-40890 Document: 00512627962 Page: 3 Date Filed: 05/13/2014
No. 13-40890
additionally warned that future frivolous, repetitive, or otherwise abusive
filings will invite the imposition of additional and progressively more severe
sanctions and that he should review any pending appeals and actions and move
to dismiss any that are frivolous.
APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; SANCTION IMPOSED; SANCTION WARNING ISSUED.
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