Trimble v. Fitzwater

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-50428
Conference Calendar

BENNY EUGENE TRIMBLE,

Plaintiff-Appellant,

versus

ANTHONY FITZWATER, CO III;
ALLEN KEEFE, Sergeant;
JACK/JACKIE EDWARDS,

Defendants-Appellees.

- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-96-CV-337
- - - - - - - - - -
February 11, 1998
Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

Benny Eugene Trimble, Texas prisoner #382326, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal, following the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint for failure to state a claim upon which relief

*
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that this opinion should not be published and is not precedent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. 97-50428
-2-

could be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). By moving for

IFP, Trimble is challenging the district court’s certification

that IFP status should not be granted on appeal because his

appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d

197, 202 (5th Cir. 1997).

Trimble does not contest the district court’s determination

that he had not alleged any facts tending to show that prison

officials were deliberately indifferent to his safety. Rather,

he challenges the court’s denial of his post-judgment motion

seeking leave to file a second amended complaint. However,

Trimble does not show that the district court abused its

discretion in denying his post-judgment motion for leave to

amend. See Briddle v. Scott, 63 F.3d 364, 379-81 (5th Cir.

1995). Accordingly, we uphold the district court’s order

certifying that the appeal is not taken in good faith. Trimble’s

request for IFP status is DENIED, and his appeal is DISMISSED as

meritless. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

IFP DENIED. APPEAL DISMISSED.