Lyle v. Price ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-60392
Summary Calendar
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JAMES M. LYLE, IV,
Plaintiff-Appellant,
versus
JOE PRICE, ET AL
Defendants,
JOE PRICE, Sheriff; RICK GASTON, Captain;
BRUCE CARVER; NACAISE, Deputy; RICARDO DEDEAUX,
Deputy; MIKE HALL; CRANE, DR.; JACKIE NEELY, Nurse;
BOARD OF SUPERVISORS,
Defendants-Appellees.
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CONSOLIDATED WITH
No. 99-60202
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JAMES M. LYLE, IV,
Plaintiff-Appellant,
versus
STEVE PUCKETT, MDOC Commissioner; JOE BOND, Postal
Inspector, SMCI; UNKNOWN ASHBY, Sergeant; UNKNOWN CRAWFORD,
Female Sergeant; UNKNOWN RYALS, CO-1; BETTY CREECH;
FLORENCE JONES; UNKNOWN PROPER SMCI AUTHORITIES AND
OFFICIALS; UNKNOWN BAILEY, Colonel,
Defendants-Appellees.
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Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 1:95-CV-296-RR c/w
USDC No. 2:95-CV-428-PG
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No. 99-60392 c/w
No. 99-60202
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June 1, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The motion of James Lyle IV, Mississippi prisoner # 02386,
to proceed in forma pauperis is GRANTED. Further, his motion to
consolidate appeals No. 99-60392 and No. 99-60202 is GRANTED.
Lyle’s motion to reinstate and consolidate other closed appeals
is DENIED. His motion to file reply out of time is GRANTED.
Lyle has moved for leave to appeal in forma pauperis (IFP)
the district courts’ denials of his motions under Fed. R. Civ. P.
60(b) in the above-captioned cases. The motions sought to
convince the district courts that Lyle was not in fact barred
from proceeding IFP in the district court due to the three-
strikes provision of 28 U.S.C. § 1915(g). The district court
further denied Lyle leave to appeal IFP due to the three-strikes
bar. Recognizing that Lyle’s motions raised significant
questions about the three-strikes designation, we granted Lyle
leave to challenge the district court’s denial of IFP under the
provisions of 28 U.S.C. § 1915(b). The district court has made
the appropriate assessments for payment of the filing fees in
both appeals, and the motions are now before us as a challenge to
the district court’s determination that Lyle’s appeals are
barred, under § 1915(g), unless he pays the full filing fee in
advance.
*
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. 99-60392 c/w
No. 99-60202
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Although we grant Lyle’s motions to appeal IFP, we pretermit
deciding whether Lyle’s litigation history, at the time his cases
were dismissed, supported the district courts’ determinations.
Even if those courts erred in designating Lyle’s prior cases as
strikes under § 1915(g), Lyle has foregone his right to challenge
the underlying rulings. Lyle’s appeals of the original
dismissals of his district court cases were dismissed for failure
to prosecute; Lyle did not pay the full filing fee nor did he
attempt to challenge the three-strikes determination at that
time. The current appeals are before us as denials of Rule 60(b)
relief.
The denial of a Rule 60(b) motion for relief from judgment
does not bring up the underlying judgment for review. In re Ta
Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.
1984). We review the denial of such a motion only for abuse of
discretion. Travelers Ins. Co. v. Liljeberg Enterprises, Inc.,
38 F.3d 1404, 1408 (5th Cir. 1994). Lyle’s arguments do not fit
under the first five subsections of Rule 60(b), and the “broad
power” of Rule 60(b)(6) “is not for the purpose of relieving
party from free, calculated, deliberate choices he has made. A
party remains under a duty to take legal steps to protect his own
interests. In particular, it ordinarily is not permissible to
use this motion to remedy a failure to take an appeal.” United
States v. O’Neil, 709 F.2d 361, 373 n.12 (5th Cir. 1983)
(citations and internal quotations omitted).
Lyle made the same arguments in his Rule 60(b) motions that
he made prior to dismissal of the underlying actions. Rather
No. 99-60392 c/w
No. 99-60202
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than challenge the district court’s three-strikes designation on
appeal, as he has done in the instant appeals, Lyle returned to
the district court and filed Rule 60(b) motions. Such motions
cannot substitute for an appeal, nor can they extend the time for
appeal. See Lancaster v. Presley, 35 F.3d 229, 231 (5th Cir.
1994). We cannot say that the district court abused its
discretion in denying Rule 60(b) motions that did no more than
reiterate arguments that had been made prior to dismissal.
Accordingly, we dispense with further briefing and AFFIRM the
rulings of the district courts in these consolidated cases.
AFFIRMED; MOTIONS TO PROCEED IN FORMA PAUPERIS GRANTED;
MOTION TO CONSOLIDATE GRANTED; MOTION TO FILE REPLY OUT OF TIME
GRANTED; MOTIONS TO REINSTATE AND CONSOLIDATE DENIED.