Case: 13-10333 Document: 00512345766 Page: 1 Date Filed: 08/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2013
No. 13-10333
Summary Calendar Lyle W. Cayce
Clerk
WILLIAM M. RISBY,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-195
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
William M. Risby seeks leave to proceed in forma pauperis (IFP) on appeal
from the dismissal of his civil rights complaint against the Bureau of Prisons
(BOP), the Federal Correctional Institute in Fort Worth, and employees of that
prison wherein he alleged that he had been denied visitation rights for three
years while incarcerated in retaliation for not paying debts. In two prior district
court cases, Risby was barred from filing any civil action without first obtaining
permission from the district court. Because Risby failed to seek permission prior
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-10333
to filing the instant action, the district court dismissed Risby’s complaint, denied
Risby’s request to proceed IFP on appeal, and certified that the appeal was not
taken in good faith.
Risby’s IFP motion is a challenge to the district court’s certification that
his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1992). A movant for leave to proceed IFP on appeal must show that he
is a pauper and that the appeal presents nonfrivolous issues. Carson v. Polley,
689 F.2d 562, 586 (5th Cir. 1982); § 1915(a)(3).
Risby contends that the district court erred in dismissing his complaint
without allowing him to amend his complaint or conducting a Spears1 hearing.
Because the district court’s dismissal was on the basis of a prior sanction
imposed, neither an amendment to the complaint nor a Spears hearing would
have been relevant. Moreover, Risby does not indicate what additional
information he would have provided had he been ordered to amend. Risby also
argues that he was unaware of the sanction and alleges that the BOP tampered
with his mail. However, this argument is conclusory and does not challenge the
district court’s order of dismissal.
On appeal, Risby does not dispute the existence of the sanction imposed
by the Northern District of Texas. However, he argues, in conclusory fashion,
that the district court’s dismissal of his complaint denies him his right of access
to the courts.
The dismissal of a suit for failure to comply with an earlier sanction order
is reviewed for an abuse of discretion. Gelabert v. Lynaugh, 894 F.2d 746, 747-48
(5th Cir. 1990). Because Risby fails to present any argument showing an ability
to pursue a nonfrivolous and arguable legal claim for relief, Risby’s appeal does
not present a legal issue arguable on its merits and is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983).
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
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No. 13-10333
Accordingly, the motion for leave for IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.
Risby’s motion for the appointment of counsel is DENIED. Risby is WARNED
that future frivolous appeals may result in the imposition of sanctions including
dismissal, monetary sanctions, and restrictions on his ability to file pleadings in
this court and any court subject to this court’s jurisdiction.
3