United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-51042
Conference Calendar
JAMES STEPHEN JONES,
Plaintiff-Appellant,
versus
WILLIAM JOHNSTON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CV-142
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
James Stephen Jones, federal prisoner # 56081-080, requests
permission to appeal in forma pauperis (IFP) the district court’s
dismissal of his civil rights suit as frivolous under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A because it was time-barred. Jones is
effectively challenging the district court’s certification that
he should not be granted IFP status because his appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); 28 U.S.C. § 1915(a)(3).
*
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this opinion should not be published and is not precedent except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. 04-51042
-2-
Jones argues that the district judge should have recused
himself because of his friendship with the defendant, because the
judge is a material witness in this Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), action, and because the judge
recused himself in another case brought by Jones. Jones further
argues that he is entitled to relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b)(6) because of the
appearance of partiality and that his right to a fair trial is
being violated because he is afraid to challenge the judge.
Jones’s arguments regarding recusal of the judge and for Rule
60(b) relief are not directed to the district court’s reasons for
denying him IFP status and are improper in a motion to proceed
IFP. See Baugh, 117 F.3d at 202.
Jones also argues that the defendant’s conduct of placing or
causing to be placed information that Jones “snitched” in other
inmates’ presentence reports continuously places Jones in danger,
thereby tolling the statute of limitations. The district court
properly dismissed Jones’s complaint as time-barred under either
28 U.S.C. § 1915(e)(2)(b) or § 1915A. See Ruiz v. United States,
160 F.3d 273, 275 (5th Cir. 1998); Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997). Although Texas recognizes a continuing
tort as an exception to the statute of limitations, see Mitchell
Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App. 1997),
Jones has not alleged a continuing tort but only a continuing
injury. See Rogers v. Ardella Veigel Inter Vivos Trust No. 2,
No. 04-51042
-3-
162 S.W.3d 281, 290 (Tex. App. 2005). Jones’s appeal is lacking
in arguable merit. Consequently, Jones’s request for IFP status
is denied, and his appeal is dismissed as frivolous pursuant to
5TH CIR. R. 42.2. See id.; Baugh, 117 F.3d at 202.
The district court’s dismissal of Jones’s complaint as
frivolous and the dismissal of his appeal as frivolous both count
as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Additionally, Jones has at
least one other strike. See Jones v. Smith, No. 99-51184 (5th
Cir. June 13, 2000) (unpublished). Therefore, Jones is barred
from proceeding IFP in any civil action or appeal brought 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); see Adepegba, 103 F.3d at 385.
IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.