IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20804
Conference Calendar
DONALD RAY MIKE,
Plaintiff-Appellant,
versus
BRADLE BACHMAN; FRANCIS CHERIAN;
GLENDA ADAMS; MS. KENT, Health Administrator,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-163
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Donald Ray Mike, a Texas prisoner (# 423926), has filed a
notice of appeal from the district court’s denial of his “Motion
to Alter Judgment,” which was filed following the dismissal of
his 42 U.S.C. § 1983 lawsuit for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B). Because it was filed more
than 10 days after the entry of the judgment, the “Motion to
Alter Judgment” was essentially a FED. R. CIV. P. 60(b) motion for
*
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that this opinion should not be published and is not precedent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. 01-20804
-2-
relief from judgment. See Harcon Barge Co. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).
An appeal from the denial of a Rule 60(b) motion is not an
appeal from the merits of the underlying judgment, In re Ta Chi
Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.
1984), and review of such a denial is for abuse of discretion
only. Travelers Ins. Co. v. Liljeberg Enter., Inc., 38 F.3d
1404, 1408 (5th Cir. 1994). Under this standard, “[i]t is not
enough that the granting of relief might have been permissible,
or even warranted–-denial must have been so unwarranted as to
constitute an abuse of discretion.” Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
Mike has not remotely made such a showing in his appellate
brief. His appeal is wholly without merit and is thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2. Accordingly, his appeal is DISMISSED. The dismissal
of the instant appeal as frivolous and the district court’s
dismissal of his complaint for failure to state a claim each
count as a “strike” under the three-strikes provision of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996). Mike is thus cautioned that, once he
accumulates three strikes, he may not 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).
DISMISSED; SANCTION WARNING ISSUED.