IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11114
Conference Calendar
JAMES FRANKLIN TAYLOR;
BOBBY WAYNE HAMMONDS,
Plaintiffs-Appellants,
versus
JOHN GAGE, Sheriff;
KAREN CRAVENS, Lieutenant,
Defendants-Appellees.
* * * * * * * * * * * *
JAMES FRANKLIN TAYLOR,
Plaintiff-Appellant,
versus
JOHN KNIGHT, Captain,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:94-CV-97-BC
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December 10, 1996
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
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As a threshold issue this court must determine whether
jurisdiction exists for the appeal of Bobby Hammonds, who did not
sign the notice of appeal filed by applicant James Taylor,
# 679951. Such jurisdiction is lacking because Hammonds
thereafter failed to file a timely notice of appeal or
notification of his intent to appeal. See Mikeska v. Collins,
928 F.2d 126 (5th Cir. 1991); Fed. R. App. P. 4(a). The final
judgment was entered August 15, 1996, and Taylor filed the notice
of appeal on August 28. Hammonds had 30 days after entry of
judgment or 14 days after Taylor filed the notice, whichever was
later, in which to file his notice of appeal. Id. This court
did not receive Hammonds’ notice of appeal until October 4, 1996.
Accordingly, Hammonds’ appeal is DISMISSED.
Taylor moves this court for leave to appeal in forma
pauperis (IFP) from the district court’s judgment dismissing his
claims in this civil rights action, and imposing sanctions.
Under 28 U.S.C. § 1915, as amended effective April 26, 1996, a
prisoner moving to appeal IFP must submit with his motion to
proceed IFP a certified copy of his prison trust-account
statement for the six-month period immediately preceding the
filing of his notice of appeal, obtained from the appropriate
official of each prison at which the prisoner is or was confined.
28 U.S.C. § 1915(a)(2).
Section § 1915 also requires a prisoner to pay the full
filing fee when filing an appeal IFP, unless insufficient funds
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exist in his prison account. In that case, the court must
assess, and when sufficient funds exist, collect, an initial
partial filing fee of twenty percent of the greater of (1) the
average monthly deposits to the prisoner's account; or (2) the
average monthly balance in the prisoner's account for the
previous six-month period. Thereafter, the prisoner is required
to make monthly payments of twenty percent of the preceding
month's income, until the filing fee is paid. 28 U.S.C.
§ 1915(b).
In addition to making the required financial showing, a
movant for IFP on appeal must show that he will present a
nonfrivolous issue on appeal. Fed. R. App. P. 24(a); Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). An issue is frivolous
if it lacks an arguable basis in law or in fact. Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Taylor’s motion for leave to appeal IFP is DENIED without
prejudice. He may file a renewed IFP motion within 30 days after
the date of this order, to be accompanied by (1) a brief showing
that he will present a nonfrivolous issue, and (2) the necessary
documents for him to comply with amended 28 U.S.C. § 1915.
Taylor has moved for appointment of counsel on appeal. This
court will appoint counsel in a civil rights case only if there
are exceptional circumstances requiring the assistance of counsel
to present the appeal to the court. Hulsey v. State of Texas,
929 F.2d 168, 172-73 (5th Cir. 1991). IT IS ORDERED that this
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motion is DENIED without prejudice. If Taylor wishes to renew
his said motion, he must show that there are exceptional
circumstances which justify granting it. Any renewed motion must
be filed within 30 days of the date of this order.
Taylor has moved for production of the trial transcript at
government expense. IT IS ORDERED that this motion is DENIED,
without prejudice to his renewing the motion within 30 days after
the date of this order. If Taylor renews his motion, he must
show what specific nonfrivolous issues he will raise, what
specific factual arguments support those issues, and the specific
reasons why a transcript is necessary for disposition of those
issues. See 28 U.S.C. § 753(f); Harvey v. Andrist, 754 F.2d 569,
571 (5th Cir.), cert. denied, 471 U.S. 1126 (1985).
APPEAL DISMISSED AS TO HAMMONDS; MOTIONS DENIED AS TO TAYLOR.