Reed v. Johnson , 130 F. App'x 664 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-10700
Summary Calendar
ARNOLD RAY REED; JOHN HERRERA, JR.; LAURENCE R. SUNDERLAND;
ALFRED S. VASSER; MICHAEL G. CRAVEY; RITCHIE BROWN; MILAS E.
WILLIAMS; JACOB JACKSON; RODERICK WOODARD; GAVINO J. ALEMAN;
DONNELL GUYTON; FRANK GONZALES; WAYLON J. HARRIS; FLOYD
EDWARD HENRY; NARVAIS JOE; ROBERT CERDA; DOUGLAS BRYANT;
CURTIS MCHENRY; CASTILLO REYNALDO; ERICK DESHAWN EDWARDS;
LESTER RAY HARRIS; RODERICK CALVIN; CEASAR DANIEL; PATRICK
DENLEY; THOMAS S. COOK; RUDY VALDERAS; RUDOLPHO GONZALES;
CLAUD SISK,
Plaintiffs-Appellants,
versus
GARY JOHNSON; JAMES DUKE; EDDIE PIGG,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CV-116-C
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Arnold Ray Reed, Texas prisoner number 1205652, and 27 other
Texas prisoners filed a pro se civil rights complaint,
complaining about the conditions of confinement. They moved
pursuant to FED. R. CIV. P. 23 to have the case certified as a
*
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this opinion should not be published and is not precedent except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. 04-10700
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class action and have class counsel appointed. The district
court, inter alia, denied the class certification and the request
for the appointment of counsel. Reed now appeals.
As a preliminary matter, we note that although all 28
plaintiffs were named in the original notice of appeal, only Reed
signed the notice. The clerk of this court notified the
remaining 27 plaintiffs about the defect, but none of them
evinced an intent to appeal by signing a new notice of appeal.
Therefore, Reed is the only party to the instant appeal. See
Wash v. Johnson, 343 F.3d 685, 687-89 (5th Cir. 2003).
Reed argues conclusionally that the requirements have been
met for class certification and that therefore class counsel
should have been appointed. The class certification decision is
not properly before us because the district court’s order, which
is interlocutory in nature, does not satisfy 28 U.S.C. § 1292(b)
and Reed did not make application to this court to appeal the
certification decision within ten days after entry of the order.
See Chevron USA, Inc. v. School Bd. Vermillion Parish, 294 F.3d
716, 720 (5th Cir. 2002); FED. R. CIV. P. 23(f).
To the extent Reed’s brief may be liberally construed to
seek review of the district court’s denial of the appointment of
counsel for him individually, that interlocutory order is
appealable. See Marler v. Adonis Health Prods., 997 F.2d 1141,
1142 (5th Cir. 1993); Robbins v. Maggio, 750 F.2d 405, 412-13
(5th Cir. 1985). However, Reed has not shown that exceptional
No. 04-10700
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circumstances warrant the appointment of counsel. See Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). Therefore, the
district court’s denial of the request for appointment of counsel
was not an abuse of discretion. See Jackson v. Dallas Police
Dep’t, 811 F.2d 260, 261 (5th Cir. 1986).
The appeal is without arguable merit and is DISMISSED AS
FRIVOLOUS. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. Reed is CAUTIONED that the dismissal of
this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g) and that if he accumulates three strikes, he will not
be able to proceed in forma pauperis (“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 Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996).
APPEAL DISMISSED; SANCTION WARNING ISSUED.