IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41453
Conference Calendar
THOMAS C. DAVIS,
Plaintiff-Appellant,
versus
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; JIMMIE E. ALFORD,
Warden of Michael Unit; PEGGY THOMPSON,
Coordinator of Interstate Corrections,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:92-CV-308
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February 10, 1999
Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*
PER CURIAM:**
Thomas C. Davis, Texas prisoner # 342624, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s denial of his motion to
reopen the time to file an appeal. Davis also moves for leave to
*
This matter is being decided by a quorum. 28 U.S.C. §
46(d).
**
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that this opinion should not be published and is not precedent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. 97-41453
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amend his complaint and for appointment of counsel. The motions
for leave to amend and for appointment of counsel are DENIED.
By moving for IFP, Davis is challenging the district court’s
certification that IFP should not be granted on appeal because
his appeal presents no nonfrivolous issues. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). The district court entered
final judgment dismissing Davis’ civil rights lawsuit on March
30, 1993. Davis moved to reopen the time to file an appeal on
September 12, 1997, more than four years outside the appeal
period.
Rule 4(a)(1), Fed. R. App. P., requires that the notice of
appeal in a civil action be filed within 30 days of entry of the
judgment or order from which appeal is taken. Rule 4(a)(6), Fed.
R. App. P., is the mechanism for a party to obtain relief when he
has failed to file a timely notice of appeal. Davis has not met
the requirements of Rule 4(a)(6) because he did not file the
motion to reopen the appeal period within 180 days after the
judgment or order was entered. Accordingly, the district court
was without jurisdiction to grant Davis an out-of-time appeal.
Davis’ motion is also construed as a request in this court
for leave to take an out-of-time appeal. We have no authority to
enlarge the time for filing the notice of appeal. See Fed.
R. App. P. 26(b)(1).
Accordingly, we uphold the district court’s order certifying
that Davis’ appeal presents no nonfrivolous issues. Davis’
request for IFP status is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
No. 97-41453
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We caution Davis that any additional frivolous appeals filed
by him or on his behalf will invite the imposition of sanctions.
To avoid sanctions, Davis is further cautioned to review any
pending appeals to ensure that they do not raise arguments that
are frivolous.
IFP DENIED; MOTION FOR LEAVE TO AMEND COMPLAINT DENIED;
MOTION FOR APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.