No. 99-10817
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10817
Conference Calendar
LOUIS EDWARD SPEARMAN,
Petitioner-Appellant,
versus
NANCY F. ATLAS, U.S. District Judge,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:99-CV-199-C
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February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Louis Edward Spearman, Texas prisoner #708729, argues that
the district court abused its discretion in denying his petition
for mandamus. Spearman sought an order directing Judge Nancy
Atlas of the Southern District of Texas, to conduct an
evidentiary hearing in Spearman’s civil rights case, which Judge
Atlas had previously dismissed as frivolous.
Spearman has not shown that the district court abused its
discretion in denying his request for a writ of mandamus.
Spearman had a remedy available in the form of an appeal from
Judge Atlas’ dismissal of the civil rights complaint. Further,
*
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that this opinion should not be published and is not precedent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. 99-10817
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the decision whether to grant an evidentiary hearing is a
discretionary act rather than a nondiscretionary duty. Spearman
has not demonstrated that he was entitled to the extraordinary
remedy of a writ of mandamus. See Hecker v. Ringer, 466 U.S.
602, 616 (1984).
Because Spearman has failed to raise an issue of arguable
merit, his appeal is DISMISSED as frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.
The dismissal as frivolous of Spearman’s appeal in Spearman
v. McKnight, No. 98-10725 (5th Cir. June 16, 1999) constituted a
“strike” against him under 28 U.S.C. § 1915(g). The district
court’s dismissal of the instant mandamus action as frivolous
constitutes a second strike, and this court’s dismissal of this
appeal as frivolous constitutes a third strike. See Adepegba v.
Hammons, 103 F.3d 383, 386-88 (5th Cir. 1996).
Spearman is BARRED from proceeding in forma pauperis in any
civil action or appeal while he is incarcerated unless he is
under imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; BAR IMPOSED.