Pierre v. Guidry , 75 F. App'x 300 ( 2003 )

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this opinion should not be published and is not precedent except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Oct. 28, 1993) (unpublished); 5TH CIR.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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