United States v. Sallas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50343
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY WAYNE SALLAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-96-CR-9-1-JN
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August 1, 2000
Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jerry Wayne Sallas, federal prisoner # 68692-080, has filed
an application for leave to proceed in forma pauperis (IFP) on
appeal. Sallas seeks to appeal the district court’s denial of
his motion for grand jury transcripts. Sallas’ freestanding
motion for grand jury transcripts is considered to be a civil
action. United States v. Miramontez, 995 F.2d 56, 58 (5th Cir.
1993). Sallas has not demonstrated that the district court
abused its discretion in denying his motion for the production of
grand jury materials because he has not shown a "particularized
*
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that this opinion should not be published and is not precedent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. 00-50343
-2-
need" for the materials that outweighs the policy of secrecy.
Miramontez, 995 F.2d at 59.
Sallas’ appeal presents no legal points arguable on their
merits, and the appeal from the denial of his motion is
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5th Cir. Rule 42.2.
Sallas is informed that the dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g),
in addition to the strike for the district court’s denial of his
motion for grand jury transcripts as frivolous. See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[D]ismissals as
frivolous in the district courts or the court of appeals count
[as strikes] for the purposes of [§ 1915(g)].”). We caution
Sallas that once he accumulates three strikes, he 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. See 28 U.S.C. § 1915(g).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.