Eliseo Garcia v. C. Ranches

Case: 10-50670 Document: 00511509166 Page: 1 Date Filed: 06/15/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 15, 2011
No. 10-50670
Summary Calendar Lyle W. Cayce
Clerk

ELISEO GARCIA,

Plaintiff-Appellant

C.T. RANCHES,

Defendant-Appellee

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:09-CV-24

Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Eliseo Garcia, federal prisoner federal prisoner# 57842-180, has moved for
leave to proceed in forma pauperis (IFP) on appeal from the denial of his Federal
Rule of Civil Procedure 60(b) motions for relief for judgment and from the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for lack of
jurisdiction. The district court denied Garcia IFP status on appeal and certified
that the appeal was not taken in good faith under § 1915(a)(3).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-50670 Document: 00511509166 Page: 2 Date Filed: 06/15/2011

No. 10-50670

By moving for leave to proceed IFP, Garcia is challenging the district
court’s certification that the appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Garcia’s July 12, 2010, notice of
appeal from the district court’s June 30, 2009, dismissal of his suit for lack of
jurisdiction, is untimely. See F ED. R. A PP. P. 4(a)(1)(A). Further, Garcia has not
adequately briefed and has thus abandoned any challenge to the district court’s
denial of IFP as to his Rule 60(b) motions. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Garcia has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,
Garcia’s motion to proceed IFP is denied. See Baugh, 117 F.3d at 202 n.24.
Because his appeal is frivolous, see Howard, 707 F.2d at 219-20, the appeal is
dismissed. See 5 TH C IR. R. 42.2.
The district court’s dismissal of Garcia’s claims against the defendants in
Garcia v. Henderson, No. A-09-CA-377, as frivolous pursuant to 28 U.S.C.
§ 1915(e) and our dismissal of this appeal as frivolous both count as strikes for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Garcia is warned that, if he accumulates three strikes pursuant to §
1915(g), he may not proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he “is under imminent danger of
serious physical injury.” § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.