IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20005
Conference Calendar
DONALD RAY HOWARD,
Plaintiff-Appellant,
versus
S.K. KENNEDY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CV-3680
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Donald Ray Howard, Texas prisoner # 552132, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s denial of relief on his
civil rights complaint after a bench trial. By moving for IFP,
Howard 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).
*
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that this opinion should not be published and is not precedent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. 00-20005
-2-
The majority of Howard’s IFP motion constitutes a review of
the Prison Litigation Reform Act and its effects on prisoners
proceeding IFP. Although Howard contends that this court must
allow him to proceed IFP if it certifies that his appeal is taken
in good faith, he does not argue any issues to show that his
appeal is taken in good faith. He does, however, list three
issues that he apparently intends to raise on appeal. He first
asserts that disputed issues of material fact exist about
defendant Kennedy’s use of excessive force against Howard. The
case went to trial, and the court resolved all disputed issues in
favor of Kennedy. To the extent Howard wishes to challenge the
court’s credibility findings, they will not be reviewed on
appeal. See Martin v. Thomas, 973 F.2d 449, 453 n.3 (5th Cir.
1992).
Howard also contends that he was unable to present his case
because Kennedy failed to provide him with a copy of the pretrial
order within the time set forth by the district court. He has
failed to provide any evidence that he was prevented from
presenting testimony or evidence as a result of the lack of a
joint pretrial order. Howard also contends that the district
court improperly failed to sanction Kennedy for this error.
Although FED. R. CIV. P. 16(f) permits sanctions for failing to
obey a scheduling or pretrial order, sanctions should be imposed
only if the noncompliance was not substantially justified.
Kennedy’s attorney admitted that he sent the wrong document to
Howard originally and that this error was unintentional. Howard
has not disputed this statement. Kennedy’s attorney also offered
No. 00-20005
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to agree to a continuance so that Howard would have time to
respond, but Howard refused a continuance. Under these
circumstances, Howard has failed to show that the district
court’s failure to impose sanctions for failing to send the joint
pretrial order in a timely manner was error. Howard’s appeal is
without arguable merit and is thus frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, we uphold the district court’s order certifying
that the appeal is not taken in good faith and denying Howard IFP
status on appeal, we deny the motion for leave to proceed IFP,
and we DISMISS Howard’s appeal as frivolous. See Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2.
APPEAL DISMISSED.