Lauer v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41055
Summary Calendar
DAVID LAUER,
Plaintiff-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; BARRY TELFORD UNIT;
WARDEN UNKNOWN STEPHENS; WARDEN UNKNOWN HUDSON; WARDEN UNKNOWN
RODEEN; CAPTAIN UNKNOWN ODEM; LIEUTENANT UNKNOWN MILES;
LIEUTENANT UNKNOWN WISNER; TIA RANGE, Lieutenant; SARGENT UNKNOWN
COLEMAN; UNKNOWN DELEVAN, mail personnel; UNKNOWN SHARP, mail
personnel; UNKNOWN YBARRA, mail personnel; MAIL PERSONNEL UNKNOWN
RAYBURN; UNKNOWN CURRIE, mail room,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(5:02-CV-243)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant David Lauer, Texas prisoner # 1069082, has
filed a motion to proceed in forma pauperis (IFP) on appeal,
effectively challenging the district court’s certification that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d
197, 199-202 (5th Cir. 1997); 28 U.S.C. § 1915(a).
*
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this opinion should not be published and is not precedent except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.
The district court dismissed Lauer’s § 1983 complaint after
determining that (1) Lauer had a history of abuse of the court, (2)
the Western District of Texas had barred Lauer from filing any new
lawsuits without obtaining leave of court, (3) General Order 94-6
of the Eastern District of Texas specified that the court would
honor sanctions imposed by another Texas federal court, and (4)
Lauer had not informed the court of the sanction order prior to
filing his suit. The district court did not err in certifying that
the appeal was not taken in good faith or in dismissing Lauer’s
§ 1983 suit. See Balawajder v. Scott, 160 F.3d 1066, 1068 (5th
Cir. 1998); Murphy v. Collins, 26 F.3d 541, 544 (5th Cir. 1994).
As Lauer has not shown that his appeal will present legal
points arguable on their merits, we deny his motion for leave to
proceed IFP, and we dismiss his appeal as frivolous. See Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. This dismissal counts as
a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). Lauer previously accumulated two
§ 1915(g) strikes. See Lauer v. Treon, 82 F. App’x 948, *1 (5th
Cir. 2003). Accordingly, Lauer is now barred under § 1915(g) from
bringing a civil action or an appeal from a judgment in a civil
action or proceeding under § 1915 unless he is under imminent
danger of serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
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