Perkins v. Johnson , 118 F. App'x 824 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-10578
Conference Calendar
EDWIN BERNARD PERKINS,
Plaintiff-Appellant,
versus
GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; MAC SPRINGFELLOW, Chairman, Texas
Department of Criminal Justice; JOHN CORNYN, Attorney General of
Texas,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-1762-R
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Edwin Bernard Perkins, Texas inmate # 699746, has filed a
motion in this court to proceed in forma pauperis (“IFP”) in the
appeal of the denial of his motion to reinstate his civil rights
complaint. In the belief that his May 14, 2004, notice of appeal
was not effective, Perkins filed a “Motion to Relinquish Appeal.”
Because Perkins’s May 14, 2004, notice of appeal is effective, we
*
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this opinion should not be published and is not precedent except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. 04-10578
-2-
DENY as unnecessary the “Motion to Relinquish Appeal.” See FED.
R. APP. P. 4(a)(4)(B)(i).
The district court dismissed Perkins’s complaint without
prejudice under FED. R. CIV. P. 41(a) pursuant to Perkins’s
motion for voluntary dismissal, and it denied his motion to
reinstate the complaint. The district court certified that,
pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP. P. 24(a)(3),
Perkins’s appeal of the denial of the motion to reinstate was not
taken in good faith.
In his IFP motion, Perkins argues that the district court
erred in refusing to reinstate his complaint. He contends that
the statute of limitations will bar him from pursuing some of his
claims. Perkins states that he delayed in moving to reinstate
his complaint because he was under a legal disability, and he
contends that he has acted in good faith and that the defendants
would not be prejudiced were the complaint reinstated.
Under FED. R. CIV. P. 41(a), the voluntary dismissal of an
action completely terminates the litigation, without further
order by the district court. See Long v. Bd. of Pardons and
Paroles of Texas, 725 F.2d 306, 306 (5th Cir. 1984). “A
voluntary dismissal without prejudice leaves the situation as if
the action had never been filed. After a dismissal the action is
no longer pending in the court and no further proceedings in the
action are proper.” Id. at 307 (internal quotation marks and
No. 04-10578
-3-
citation omitted). It is not error for a district court to
refuse to reactivate a finally dismissed former action. See id.
Perkins has not shown that he will raise a nonfrivolous
issue on appeal or that the district court erred in certifying
that his appeal was not taken in good faith. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, Perkins’s
motion for leave to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202
n.24 (5th Cir. 1997); 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). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Perkins is WARNED
that, if he accumulates three “strikes” pursuant to 28 U.S.C.
§ 1915(g), 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. See 28
U.S.C. § 1915(g).
MOTIONS DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.