IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50623
Conference Calendar
STEVEN WAYNE RITCHEY,
Plaintiff-Appellant,
versus
FRED S. ZAIN; BEXAR COUNTY MEDICAL
EXAMINER’S OFFICE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CV-34
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December 10, 1997
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Steven Wayne Ritchey, Texas prisoner #541162, appeals from
the dismissal of his 42 U.S.C. § 1983 complaint for failure to
prosecute because he failed to pay the district-court filing fee
and from the denial of his motion to reinstate his complaint.
Ritchey contends that he complied with the magistrate judge’s
order to pay the full filing fee because he authorized the
withdrawal of funds from his account, in compliance with Texas
*
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that this opinion should not be published and is not precedent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. 97-50623
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prison procedures.
We must examine the basis of our jurisdiction on our own
motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Ritchey’s notice of appeal was untimely to raise the
judgment dismissing his complaint for appeal. We therefore lack
jurisdiction over his appeal from the dismissal of the complaint.
To the extent that Ritchey seeks to appeal from the dismissal of
his complaint, his appeal is dismissed for lack of jurisdiction.
Ritchey’s motion to reinstate his complaint was a motion for
relief pursuant to FED. R. CIV. P. 60(b). Harcon Barge Co. v. D &
G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986)(en banc).
The denial of that motion was not an abuse of discretion. Matter
of Ta Chi Navigation Corp., 728 F.2d 699, 703 (5th Cir. 1988).
First, whatever the reason for Ritchey’s noncompliance, the
district court did not receive Ritchey’s filing fee within the
period allowed by the magistrate judge. Second, Ritchey provided
no documentation to support his allegation that he authorized
prison officials to withdraw funds from his trust-fund account
and forward them to the district court. Third, by suing Fred
Zain for allegedly falsifying evidence, Ritchey seeks to
undermine his conviction. Ritchey has no cause of action until
his conviction is invalidated or called into question by a grant
of a habeas corpus writ. Heck v. Humphrey, 512 U.S. 477, 489
(1994). Ritchey was so cautioned by the district court in the
order dismissing his complaint.
No. 97-50623
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Ritchey’s appeal is without arguable merit and is frivolous.
We caution Ritchey that any additional frivolous appeals filed by
him or on his behalf will invite the imposition of sanctions. To
avoid sanctions, Ritchey is further cautioned to review any
pending appeals to ensure that they do not raise arguments that
are frivolous.
APPEAL DISMISSED; SANCTION WARNING ISSUED.