United States v. Jones , 202 F. App'x 721 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 16, 2006
Charles R. Fulbruge III
Clerk
No. 05-51393
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK ALEXANDER JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(6:02-CR-193-1)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Patrick Alexander Jones, federal prisoner number 60763-080,
requests authorization to proceed in forma pauperis (IFP) in the
instant appeal, which was filed to challenge the district court’s
denial of his FED. R. CRIM. P. 41 motion for return of property. The
district court denied Jones’s motion for leave to proceed IFP on
appeal and certified that the appeal was not taken in good faith.
Jones challenges the district court’s certification decision
pursuant to Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), and
*
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this opinion should not be published and is not precedent except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.
requests that this court grant him authorization to proceed IFP on
appeal.
Jones argues that state officials acted improperly by seizing
his property, that his state forfeiture proceedings were unfair,
and that the district court’s denial of his IFP motion infringes
his right of access to courts. Jones further contends that the
district court erred by not holding an evidentiary hearing and by
granting the Government’s requests for additional time to file
pleadings.
Jones has not shown that the district court erred by denying
his Rule 41(g) motion, which is properly construed as a civil
complaint. See Pena v. United States, 122 F.3d 3, 4 (5th Cir.
1997); United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996).
Jones is not entitled to the return of his property pursuant to the
instant federal proceedings because he has not identified the
proper party in his suit. The searches, seizures, and forfeitures
of which Jones complains were performed by state officials, yet
Jones has sued only the federal government. Further, Jones has not
shown that federal officials were involved in the actions that led
to the seizure and forfeiture of the disputed property.
Jones’s allegation that his right of access to court was
violated by the denial of his IFP motion lacks merit. See Brewer
v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). Jones has failed to
show that the district court abused its discretion by not holding
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an evidentiary hearing and by granting the Government additional
time to file pleadings. See Geiserman v. MacDonald, 893 F.2d 787,
790-91 (5th Cir. 1990); Dickens v. Lewis, 750 F.2d 1251, 1255 (5th
Cir. 1984).
Jones has not established 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 and citation omitted). Accordingly, his motion for
authorization to proceed IFP on appeal is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24.
The dismissal of Jones’s appeal as frivolous by this court
counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Jones is cautioned
that once he accumulates three strikes, 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).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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