IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50086
Summary Calendar
JAMES MONTANYA, JR.,
Plaintiff-Appellant,
versus
JAMES D. EASLEY, Captain; JOHN DOE, Correctional Officer #1;
ALBERT CULLARS, Correctional Officer #2; JOHN DOE, Correctional
Officer #3; JOHN DOE, Correctional Officer #4,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-12
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May 25, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury returned a verdict against James Montanya, Jr., Texas
prisoner no. 593707, in a civil rights action brought against two
named correction officers and three “John Doe” correction
officers under 42 U.S.C. § 1983. The district court denied
Montanya leave to appeal in forma pauperis (“IFP”) and certified
that the appeal would be frivolous and not taken in good faith
under § 1915(a)(3) and Fed. R. App. P. 24(a). Montanya now seeks
*
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that this opinion should not be published and is not precedent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. 01-50086
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leave from this court to appeal IFP. See Baugh v. Taylor, 117
F.3d 197 (5th Cir. 1997).
Montanya argues that he was denied adequate discovery in the
district court. The discovery rulings which he seeks to appeal
were issued by the magistrate judge, and Montanya did not file
timely objections to those orders with the district court.
Therefore he may not now appeal the magistrate judge’s orders.
See Fed. R. Civ. P. 72. Further, even if Montanya had preserved
his appeal of the orders, he has chosen not to provide this court
with an adequate record to enable us to determine the merits of
his discovery claims or any prejudice he may have suffered due to
a denial of discovery. See Powell v. Estelle, 959 F.2d 22, 26
(5th Cir. 1992); Leatherman v. Tarrant Cty. Narcotics
Intelligence and Coordination Unit, 28 F.3d 1388, 1394 (5th Cir.
1994) (appellant must show prejudice resulting from denial of
discovery). Montanya’s appeal is without arguable merit and is
thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983).
Accordingly, Montanya’s motion to proceed IFP is DENIED, and
his appeal is DISMISSED as frivolous. See 5th Cir. R. 42.2.
In addition to the dismissal of this appeal as frivolous,
one of Montanya’s prior civil rights action was dismissed as
frivolous. See Montanya v. McGranahan, 184 F.3d 818 (table), No.
98-11288 (5th Cir. June 17, 1999). The prior dismissal and this
dismissal each count as a “strike” under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Montanya is warned that if he accrues three strikes he will not
No. 01-50086
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be allowed to proceed in forma pauperis 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.
See 28 U.S.C. § 1915(g).
Montanya has also filed a “Notice of Scrivener’s Error,”
which we construe as a motion to correct the brief. In light of
the dismissal of the appeal, the motion-to-correct is DENIED.
MOTION TO PROCEED IN FORMA PAUPERIS DENIED; APPEAL
DISMISSED; SANCTIONS WARNING ISSUED; ALL OUTSTANDING MOTIONS
DENIED.