IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40260
Summary Calendar
JERRY E. EASLEY,
Plaintiff-Appellant,
versus
STATE OF TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CV-51
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August 30, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jerry E. Easley, Texas state prisoner # 421286, has appealed
the district court’s order dismissing his 42 U.S.C. § 1983
complaint and its order denying his postjudgment motion filed
pursuant to Fed. R. Civ. P. 60(b).
This court must raise, sua sponte, the issue of its own
jurisdiction, if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). Easley’s notice of appeal was not filed within
30 days of the entry of judgment dismissing his complaint. See
Fed. R. App. P. 4(a)(1)(A). Thus, Easley’s appeal from the
*
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this opinion should not be published and is not precedent except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. 01-40260
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underlying judgment was not timely filed, and this court does not
have jurisdiction to review the order of dismissal. Huff v.
International Longshoremen’s Ass’n, Local No. 24, 799 F.2d 1087,
1089-90 (5th Cir. 1986).
However, Easley’s notice of appeal was filed within 30 days
of the district court’s order denying his Rule 60(b) motion and,
thus, the notice of appeal conferred jurisdiction on this court
to review that order. Matter of Ta Chi Navigation (Panama) Corp.
S.A., 728 F.2d 699, 703 (5th Cir. 1984). This court reviews the
denial of a Rule 60(b) motion for an abuse of discretion.
Travelers Ins. Co. v. Liljeberg Enter., Inc., 38 F.3d 1404, 1408
(5th Cir. 1994). “Appellate review of a denial of a rule 60(b)
motion ‘must be narrower in scope than review of the underlying
order of dismissal so as not to vitiate the requirement of a
timely appeal.’” Huff, 799 F.2d at 1091 (citation omitted).
Easley’s arguments on appeal are directed to the district
court’s underlying order dismissing his complaint, which the
court does not have jurisdiction to address. Easley does not
assert that he was entitled to relief under any specific section
of Fed. R. Civ. P. 60(b), and he does not challenge the district
court’s reasons for denying his motion. Easley has failed to
show an abuse of discretion by the district court and, thus, he
has not shown that he was entitled to relief under Fed. R. Civ.
P. 60(b).
Because Easley’s appeal has no arguable merit, it is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2.
No. 01-40260
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The district court properly characterized Easley’s claims as
arising under 42 U.S.C. § 1983 because he is challenging the
conditions of his confinement, and he has not asserted that the
defendant’s conduct will have any effect on the duration of his
sentence. See Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir.
1997).
Because Easley’s pleadings were properly construed as a 42
U.S.C. § 1983 complaint, the provisions of the Prison Litigation
Reform Act (PLRA) are applicable, including the three-strikes
provision of 28 U.S.C. § 1915(g).
Easley had at least three 28 U.S.C. § 1915(g) strikes
against him prior to bringing this action.** See Easley v.
Vance, No. 94-50345 (5th Cir. Jan. 27, 1995)(appeal affirming the
district court’s dismissal of the complaint as frivolous pursuant
to 28 U.S.C. § 1915(d)); Easley v. Johnson, No. 98-40627 (5th
Cir. Feb. 11, 1999)(district court dismissed complaint as
frivolous, and this court dismissed the appeal as frivolous,
finding it had no arguable merit). See Adepegba v. Hammons, 103
F.3d 383, 385-88 (5th Cir. 1996). The district court’s dismissal
of the present case, and this court’s dismissal of Easley’s
instant appeal as frivolous count as two additional strikes
against him for purposes of 28 U.S.C. § 1915(g). Id.
**
Because Easley paid the appellate filing fee in the
instant case, review of this appeal was not precluded by 28
U.S.C. § 1915(g).
No. 01-40260
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Thus, Easley is BARRED from proceeding in forma pauperis
(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. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
INVOKED.