Lee v. Sparkman , 169 F. App'x 274 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-60892
Conference Calendar
GARY LEE,
Plaintiff-Appellant,
versus
E.L. SPARKMAN, Warden at Marshall County Correctional Facility;
A.W. HELMIC, Deputy Warden, School Programs; W.M. WILLIAMS,
Assistant Warden; LANCE BUTLER, Attorney, Inmate Lawyer; GWEN
SHAW, Legal Claim Adjudicator,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:00-CV-107-P
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Gary Lee, Mississippi prisoner # 39820, has filed a motion
for leave to proceed in forma pauperis (IFP) in this appeal of
the district court’s denial of his FED. R. CIV. P. 60(b) motion
for relief from the district court’s judgment denying his 42
U.S.C. § 1983 action. The district court denied Lee leave to
proceed IFP on appeal, certifying that the appeal was not taken
in good faith. By moving for leave to proceed IFP, Lee is
*
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this opinion should not be published and is not precedent except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. 04-60892
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challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P.
24(a)(5).
Lee argues that he has newly discovered evidence showing
that the defendants failed to provide him with a copy of the
Antiterrorism and Effective Death Penalty Act and thereby denied
his right of access to the courts. Lee has not shown that this
evidence could not have been discovered through due diligence
prior to the district court’s initial judgment denying his 42
U.S.C. § 1983 action. Lee has not shown that the district
court’s denial of his Rule 60(b) motion was an abuse of
discretion. See Carimi v. Royal Carribean Cruise Line, Inc., 959
F.2d 1344, 1345 (5th Cir. 1992).
Lee has failed to show that his appeal involves “‘legal
points arguable on their merits (and therefore not frivolous).’”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks omitted). Accordingly, the motion for leave to
proceed IFP on appeal is denied and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Lee is cautioned that the dismissal of this appeal as frivolous
counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Lee is warned
that if he accumulates three strikes under 28 U.S.C. § 1915(g),
he will not be able to proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
No. 04-60892
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he is under imminent danger of serious physical injury. See 28
U.S.C. § 1915(g); see FED. R. APP. P. 38; Clark v. Green, 814 F.2d
221, 223 (5th Cir. 1987).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.