Alvarado v. Healy ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20197
Conference Calendar
STEVE ALVARADO,
Plaintiff-Appellant,
versus
M. CAROL HEALY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1659
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February 13, 2001
Before SMITH, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Steve Alvarado, Texas inmate # 570362, appeals the district
court’s denial of his motion for reconsideration of its dismissal
of his civil rights complaint as time-barred. When, as in the
instant case, the face of a in forma pauperis complaint clearly
shows that the claims asserted are barred by the applicable
statute of limitations, dismissal under 28 U.S.C. § 1915 is
proper. Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir.
1998). Thus, the district court did not abuse its discretion
when it denied Alvarado relief under Fed. R. Civ. P. 60(b) from
*
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that this opinion should not be published and is not precedent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. 99-20197
-2-
the dismissal of his suit as time-barred. See Travelers Ins. Co.
v. Liljeberg Enter., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994).
The judgment of the district court is AFFIRMED. Alvarado’s
appeal is without arguable merit and, thus, frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2.
This dismissal of a frivolous appeal following the district
court's dismissal of the lawsuit for failure to state a claim
brings Alvarado under the purview of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If one
other district court action or appeal filed by Alvarado is
dismissed as frivolous, malicious, or for failure to state a
claim, he will be barred from bringing a civil action or appeal
as a prisoner proceeding in forma pauperis unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.