IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10216
Conference Calendar
OLIVER J. LEWIS,
Plaintiff-Appellant,
versus
STATE OF TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-1859-A
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August 21, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Oliver J. Lewis (Lewis), Texas prisoner #715638, appeals the
district court’s dismissal of his pro se civil rights action
under 42 U.S.C. § 1983 for lack of jurisdiction.
This court must examine the basis of its jurisdiction on its
own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Lewis’s “Appeal to Vacate” was executed on January
29, 2001, within 10 days of the district court’s January 17,
2001, order of dismissal. This motion is treated as one under
Fed. R. Civ. P. 59. See Mangieri v. Clifton, 29 F.3d 1012, 1015
*
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that this opinion should not be published and is not precedent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. 01-10216
-2-
n.5 (5th Cir. 1994); Harcon Barge Co. v. D & G Boat Rentals,
Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc). Lewis filed a
motion supplementing his Rule 59 motion. The district court
denied this motion. Within 30 days of the district court’s
denial of his supplemental motion, Lewis filed a motion for leave
to proceed in forma pauperis (IFP) on appeal. See Fed. R. App.
P. 4(a)(1)(A). Lewis’s motion to proceed IFP on appeal is
treated as a timely notice of appeal as it evinced his intent to
appeal. See Robbins v. Maggio, 750 F.2d 405, 408-09 (5th Cir.
1985); see also Fed. R. App. P. 4(a)(4)(B)(i). Accordingly, we
have jurisdiction to consider Lewis’s appeal from the district
court’s dismissal of his 42 U.S.C. § 1983 complaint. See
Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 (5th
Cir. 1989).
Lewis concedes that his complaint did not allege a violation
of his constitutional rights. Lewis nevertheless argues that the
district court erred because it did not allow him an opportunity
to amend his pleadings and because it did not consider his pro se
status. The district court correctly construed Lewis’s complaint
as a petition for a writ of mandamus ordering the Tarrant County
district attorney or custodian or records to produce DNA test
results. Federal courts have no authority to issue writs of
mandamus to direct state courts or their judicial officers in the
performance of their duties. See Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973) (citations
omitted). To the extent Lewis sought damages for the State’s
alleged due process violation in not turning over DNA test
No. 01-10216
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results, this claim is barred by Heck v. Humphrey. 512 U.S. 477,
486-87 (1994). As Lewis has failed to brief his ineffective
assistance of counsel claim, this claim has been abandoned on
appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Lewis’s appeal is without merit and is therefore frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5th Cir.
R. 42.2. The district court’s dismissal of this case and this
court’s dismissal of his appeal as frivolous count as two strikes
for purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). We caution Lewis that once he
accumulates three strikes, he may not proceed IFP in any civil
action or appeal while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury.
DISMISSED AS FRIVOLOUS; WARNING ISSUED.