No. 99-10823
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10823
Conference Calendar
LARUE CHRISTIAN,
Plaintiff-Appellant,
versus
VERA GOURD, Dallas Police Department;
JOHN HALEY, Dallas Police Department;
BENNIE R. CLICK, Dallas Police Department,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-1239-H
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April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
LaRue Christian, Texas prisoner # 523046, has filed a motion
for leave to proceed in forma pauperis (“IFP”) on appeal,
following the district court’s granting of summary judgment in
favor of the defendants and denial of his 42 U.S.C. § 1983 civil
rights action. By moving for IFP status, Christian is
challenging the district court’s certification that IFP status
should not be granted on appeal because his appeal presents no
nonfrivolous issues and is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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. 99-10823
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Christian argues that the district court did not give him an
opportunity to conduct discovery and to litigate his claims. The
district court did not abuse its discretion in staying discovery
to enable the defendants to assert qualified immunity defenses.
See Siegert v. Gilley, 500 U.S. 226, 231 (1991).
Christian argues the district court signed the defendants’
proposed findings and order without giving him notice and an
opportunity to respond; however, he does not explain which
proposed findings the district court allegedly adopted without
giving him notice. Because Christian received notice of the
magistrate judge’s report and recommendation and an opportunity
to file objections, he has not shown that the district court
adopted the defendants’ proposed findings or entered judgment
without giving him notice or an opportunity to respond.
Christian argues that he made a jury demand and that the
district court violated his due process rights by not giving him
a jury trial. Christian was not denied his right to a jury trial
because the district court determined that there were no genuine
issues of material fact for which a jury trial would be needed.
See, e.g., Odum v. Penn. Mut. Life Ins. Co., 288 F.2d 744, 748
(5th Cir. 1961).
Christian argues that the district court did not give him
notice that service of process intended for Haley was returned
unexecuted until he received the district court’s order
dismissing his claim against Haley. Because the appellate record
does not contain the summons which was returned unexecuted, it is
not possible to determine whether Christian received notice that
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the summons was not served on Haley. However, the district
court’s judgment may be affirmed on the alternative ground that
Christian’s claims against Haley lacked merit. See United States
v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995). Christian has
not shown that he has a liberty interest in the requested
information, and Section 552.027 of the Texas Government Code
negates any liberty interest he may have had in the requested
information. Therefore, he has not shown that Haley violated his
due process rights in denying his request for a copy of his
police report. See Geter v. Fortenberry, 849 F.2d 1550, 1556
(5th Cir. 1988) (plaintiff can obtain relief under § 1983 only
when his federal statutory or constitutional rights are
violated); see also Tarka v. Franklin, 891 F.2d 102 (5th Cir.
1989)(court denied plaintiff’s due process and § 1983 claims for
defendant’s refusal to provide access to his student records and
concluded that plaintiff was not entitled to the records because
he was not a student under Family Educational Rights and Privacy
Act).
Because Christian has not shown that he will raise a
nonfrivolous issue on appeal, his IFP motion is DENIED and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202
n.24; 5th Cir. R. 42.2.
Christian is cautioned that this court’s dismissal of his
appeal counts as a “strike” under § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Christian is
further cautioned that if he accumulates three “strikes” under
§ 1915(g), he will not be able to proceed IFP in any civil action
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or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.