Ellis v. Carr ( 2021 )

Case: 20-10843 Document: 00516105023 Page: 1 Date Filed: 11/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2021
No. 20-10843 Lyle W. Cayce
Summary Calendar Clerk
Priscilla A. Ellis,
Petitioner—Appellant,
versus
Michael Carr, Warden, FMC-Carswell,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-1065
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
Priscilla A. Ellis, federal prisoner # 03260180, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of
her Federal Rule of Civil Procedure 60(b)(6) motion following dismissal of
her 28 U.S.C. § 2241 habeas corpus petition. See 28 U.S.C. § 1915(a)(1);
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10843 Document: 00516105023 Page: 2 Date Filed: 11/23/2021
No. 20-10843
Fed. R. App. P. 24(a). The district court determined that Ellis was
financially able to pay the filing fee, and it denied her request for leave to
proceed IFP on appeal on that basis.
To proceed IFP, Ellis must demonstrate financial eligibility and the
existence of a nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d
562, 586 (5th Cir. 1982). A nonfrivolous issue “involves legal points arguable
on their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). If Ellis fails to show that her appeal
will involve a nonfrivolous issue, we may deny her IFP motion and sua sponte
dismiss her appeal as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24
(5th Cir. 1997); 5th Cir. R. 42.2.
Although Ellis appeals the district court’s denial of her Rule 60(b)
motion, she has failed to brief, and has thereby abandoned, any appellate
challenge to the district court’s order. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Thus, Ellis has failed to raise a nonfrivolous issue for
appeal. See Howard, 707 F.2d at 220. This appeal is therefore DISMISSED
as frivolous, and her motions for leave to proceed IFP on appeal, for
appointment of counsel, for hearing en banc, and for reconsideration of the
denial of her motion for leave to file exhibits are DENIED. See 5th Cir.
R. 42.2; see also Wardlaw v. Cain, 541 F.3d 275, 279 (5th Cir. 2008).
In light of the dismissal of the instant appeal as frivolous and the two
previous motions Ellis filed raising similar claims as the claims raised in the
underlying § 2241 petition, Ellis is WARNED that the filing of frivolous,
repetitive, or otherwise abusive filings will invite the imposition of sanctions,
which may include dismissal, monetary sanctions, and restrictions on her
ability to file pleadings in this court and any court subject to this court’s
jurisdiction.
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