IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2009
No. 08-30722
Conference Calendar Charles R. Fulbruge III
Clerk
ANTHONY LEON GREENHILL
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA, on behalf of Federal Bureau of Investigation;
MARK EDENFIELD; JENNA EPPLIN; FEDERAL BUREAU OF PRISONS;
CORRECTIONAL OFFICER HUNT; D LAIR; CORRECTIONAL LIEUTENANT
MELTON
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CV-473
Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
Anthony Leon Greenhill, federal prisoner # 56411-097, appeals the district
court’s denial of his Federal Rule of Civil Procedure 60(b) motion to reopen a
complaint seeking damages under the Federal Tort Claims Act and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
We previously affirmed the district court’s dismissal of the complaint as frivolous
and for failure to state a claim for relief. Greenhill v. United States, 275 F. App’x
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30722
315, 317 (5th Cir. 2008). Greenhill has moved to proceed in forma pauperis (IFP)
on appeal, challenging the district court’s certification, pursuant to Baugh v.
Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997), that his appeal from the denial of
Rule 60(b) relief is not taken in good faith.
Greenhill’s argument that the denial of his motion was an abuse of
discretion under Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007),
is frivolous. The decision not to hold a Spears 1 hearing to allow Greenhill to
amend his complaint to add claims against new defendants was within the
discretion of the district court. See Gov’t Fin. Servs. One Ltd. P’ship v. Peyton
Place, Inc., 62 F.3d 767, 770 (5th Cir. 1995). Accordingly, the district court’s
certification that Greenhill’s appeal is not taken in good faith is upheld, and
Greenhill’s motion for IFP is denied. Because this appeal is frivolous, see
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is dismissed. See
Baugh, 117 F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). We caution Greenhill that once he accumulates three strikes, he may not
proceed 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.” § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2