Case: 16-60182 Document: 00513925391 Page: 1 Date Filed: 03/24/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60182
Fifth Circuit
FILED
March 24, 2017
WILLIAM LEWIS GASKIN, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS; DOCTOR RON WOODALL; DOCTOR GWEN
WOODLAND,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:13-CV-527
Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
William Lewis Gaskin, Mississippi prisoner # T0251, moves this court
for authorization to proceed in forma pauperis (IFP) on appeal from the
magistrate judge’s order denying his motion to compel the defendants’
compliance with a discovery order in his 42 U.S.C. § 1983 civil rights suit,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-60182 Document: 00513925391 Page: 2 Date Filed: 03/24/2017
No. 16-60182
which had already been dismissed by the magistrate judge. 1 By moving to
proceed IFP in this court, Gaskin challenges the magistrate judge’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
The magistrate judge’s order denying Gaskin’s motion to compel is not
an appealable final decision for purposes of 28 U.S.C. § 1291. See Periodical
Publishers Serv. Bureau, Inc. v. Keys, 981 F.2d 215, 217 (5th Cir. 1993)
(“Discovery orders are not generally appealable because usually they are not
final decisions within the meaning of 28 U.S.C. § 1291.”). Gaskin’s notice of
appeal was not timely as to the magistrate judge’s final judgment granting
summary judgment for the defendants and dismissing Gaskin’s § 1983
complaint with prejudice. See FED. R. APP. P. 4(a)(1) (setting a 30-day period
for noticing an appeal). Gaskin did not seek to enlarge the time to appeal, and
he conceded in a post-judgment motion for reconsideration that he received
timely notice of the final judgment. See FED. R. APP. P. 4(a)(5)(A), (a)(6).
Because this court lacks jurisdiction over the untimely appeal, see FED. R. APP.
P. 4(a); In re Deepwater Horizon, 785 F.3d 1003, 1009 (5th Cir. 2015), the
appeal does not involve legal points arguable on their merits and Gaskin’s
motion to proceed IFP on appeal is therefore DENIED. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). His untimely appeal is DISMISSED FOR
LACK OF JURISDICTION. See FED. R. APP. P. 4(a)(1); Deepwater Horizon,
785 F.3d at 1009.
1 The proceedings were conducted by the magistrate judge with the consent of the
parties. See 28 U.S.C. § 636(c).
2