Banos v. Caldwell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40186
Conference Calendar
JOHN WESLEY BANOS,
Plaintiff-Appellant,
versus
CORETTA CALDWELL,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:96-CV-57
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August 15, 1997
Before KING, HIGGINBOTHAM, AND DUHÉ, CIRCUIT JUDGES.
PER CURIAM:*
The magistrate judge improperly granted John Wesley Banos,
Texas prisoner # 545431, leave to proceed on appeal in forma
pauperis (IFP). Banos has at least three strikes, pursuant to 28
U.S.C. § 1915(g), which bars Banos from IFP status. See Banos v.
Garner, No. 96-CV-92 (E.D. Tex. May 22, 1996) (case dismissed as
frivolous; appeal dismissed for want of prosecution); Banos v.
Bush, No. 96-CV-219 (E.D. Tex. Oct. 3, 1996)(case dismissed as
frivolous; appeal dismissed for want of prosecution); Banos 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that this opinion should not be published and is not precedent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.
No. 97-40186
-2-
Shaw, No. 93-CV-45 (E.D. Tex. Apr. 23, 1993)(case dismissed as
frivolous; district court’s judgment was affirmed on appeal).
Nothing in the record indicates that the exception to the
statutory bar applies in this case. IT IS ORDERED that the
earlier order granting leave to proceed IFP is VACATED. Banos
has thirty days in which to pay the $105 filing fee. Failure to
make a timely payment will result in the dismissal of the appeal
for want of prosecution. See 5th Cir. R. 42.3.1.2.
APPEAL DISMISSED IF FULL FILING FEE NOT PAID.