Pierre v. Guidry

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 17, 2003

Charles R. Fulbruge III
Clerk
No. 03-30515
Summary Calendar

HERBERT ALBERT PIERRE, JR.,

Plaintiff-Appellant,

versus

GREG G. GUIDRY, Judge, Division E of 24th
JDC Jefferson Parish; VINCENT PACIERA, Assistant
District Attorney, P. LINDSEY WILLIAMS, 24th Judicial
District Indigent Defender,

Defendants-Appellees.

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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 03-CV-669-E
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Herbert A. Pierre, a Louisiana prisoner (# 321310), challenges

the district court’s denial of his application to proceed in forma

pauperis (“IFP”) on appeal. The court had dismissed Pierre’s pro

se, IFP complaint, purportedly filed under federal criminal

statutes, as frivolous under 28 U.S.C. § 1915(e)(2)(B). By moving

to proceed IFP on appeal, Pierre is challenging the district

court’s certification that he should not be granted IFP status

*
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this opinion should not be published and is not precedent except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.
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);

FED. R. APP. P. 24(a).

Pierre continues to urge that the defendants, a parish

district judge, an assistant district attorney, and an indigent

defender, be prosecuted under 18 U.S.C. §§ 241 and 242 for

conspiring to violate his constitutional rights. He does not seek

monetary damages or any other civil relief, and he disavows any

intention of seeking civil-rights relief under 42 U.S.C. § 1983.

As the magistrate judge concluded, Pierre has no right to bring a

private action under federal criminal statutes. See Cort v. Ash,

422 U.S. 66, 79 (1975); Ali v. Shabazz, No. 93-2495 (5th Cir.

Oct. 28, 1993) (unpublished); 5TH CIR. R. 47.5.3.

Pierre has failed to show that his complaint presented

nonfrivolous issues for appeal. Accordingly, we uphold the

district court’s order certifying that the appeal is not taken in

good faith. Pierre’s request for IFP status is DENIED, and his

appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 &

n.24; 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous

counts as a “strike” for purposes of 28 U.S.C. § 1915(g), as does

the district court’s dismissal of his complaint as frivolous. See

Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Pierre is

cautioned that if he accumulates three strikes, he will not be

permitted to proceed IFP in any civil action or appeal filed while

he is incarcerated or detained in any facility unless he is under

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imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

Pierre’s conclusory motion or request for “immediate

protection” is DENIED.

IFP DENIED; MOTION FOR “IMMEDIATE PROTECTION” DENIED;

APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES BAR WARNING ISSUED.

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