Lamotte v. Perkins

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50077
c/w No. 02-50078
Conference Calendar
ARNOLD RAY LAMOTTE, JR.,
Plaintiff-Appellant,
versus
BOB PERKINS, Judge, of 331st District Court,
Defendant-Appellee.
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ARNOLD RAY LAMOTTE, JR.,
Plaintiff-Appellant,
versus
STATE OF TEXAS,
Defendant-Appellee.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-840-H
USDC No. A-01-CV-839-H
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Arnold Ray Lamotte, Texas prisoner #1077212, seeks leave to
proceed in forma pauperis (IFP) following certification that his
*
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that this opinion should not be published and is not precedent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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appeals were taken in bad faith. Lamotte appeals from the
dismissals of his actions as frivolous or for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B). He contends that
the district judge lacked jurisdiction over his actions and that
the district court should have allowed him to proceed IFP solely
on the basis of his financial status. We consolidate the appeals
sua sponte. FED. R. APP. P. 3(b)(2).
A district court may deny a motion for leave to appeal
IFP by certifying that the appeal is not taken in good faith
and by providing written reasons for the certification. Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The appellant may
challenge the district court’s certification decision by filing
in this court a motion for leave to proceed IFP. Baugh, 117 F.3d
at 202; FED. R. APP. P. 24(a)(5). The motion, however, “must
be directed solely to the trial court’s reasons for the
certification decision.” See Baugh, 117 F.3d at 202. If the
merits of the appeal are “inextricably intertwined with the
certification decision,” this court may determine both issues.
Id. This court’s inquiry into an appellant’s good faith “is
limited to whether the appeal involves ‘legal points arguable on
their merits (and therefore not frivolous).’” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).
Lamotte has failed to present any nonfrivolous issues for
appeal. First, Lamotte’s jurisdictional argument lacks a factual
basis -- the Senior District Judge who presided over his cases
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has been designated to hear cases throughout Texas. 28 U.S.C.
§ 294(c). Second, Lamotte does not contend that the district
court erred by dismissing his actions pursuant to Heck
v. Humphrey, 512 U.S. 477 (1994). He has failed to brief the
sole issue relevant to the district court’s dismissal of his
actions. Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Third, because the district
court made merits determinations when dismissing Lamotte’s
actions and denying IFP, Lamotte was not prejudiced by the denial
of leave to proceed IFP in the district court. To the extent
Lamotte seeks to argue that the district court should have
granted leave to proceed IFP on appeal solely on financial
grounds, 28 U.S.C. § 1915(a)(3) provides for IFP denials for
appeals that are taken in bad faith.
Lamotte’s appeals are without arguable merit and are
dismissed as frivolous. Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). The dismissals of Lamotte’s actions and the
dismissals of his appeals count as four “strikes” for purposes of
28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Lamotte previously had three civil actions
dismissed as frivolous or for failure to state a claim, with the
last two being dismissed on June 17, 2002. Lamotte v. Bin Laden,
No. P-02-CA-037 (W.D. Tex. Jun. 17, 2002); Lamotte v. Evans,
No. P-02-CA-036 (W.D. Tex. Jun. 17, 2002); Lamotte v. Perkins,
No. A-01-CA-694-H (W.D. Tex. Oct. 22, 2001). Lamotte is barred
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from proceeding IFP in any civil action or appeal unless he is
under imminent danger of serious physical injury. 28 U.S.C.
§ 1915(g).
IFP DENIED. APPEALS DISMISSED. 28 U.S.C. § 1915(g)
SACNTION IMPOSED.