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Gutierrez v. Lumpkin ( 2021 )


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  • Case: 19-11271     Document: 00515765995          Page: 1     Date Filed: 03/04/2021
United States Court of Appeals
for the Fifth Circuit                         United States Court of Appeals
Fifth Circuit
FILED
March 4, 2021
No. 19-11271                    Lyle W. Cayce
Clerk
Orlando M. Gutierrez,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division; Austin State Hospital,
Respondents—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-2394
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Orlando M. Gutierrez, Texas prisoner # 0274388, moves this court
for leave to proceed in forma pauperis (IFP) in his appeal of the district
court’s dismissal for lack of subject matter jurisdiction of his mandamus
*
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opinion should not be published and is not precedent except under the limited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: 19-11271       Document: 00515765995            Page: 2    Date Filed: 03/04/2021
No. 19-11271
petition filed when he was a resident of Austin State Hospital. Gutierrez’s
motion for the appointment of counsel is DENIED.
By moving for leave to proceed IFP on appeal, Gutierrez is challenging
the district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997); Fed. R. App. P. 24(a).
Gutierrez’s brief on appeal does not address the district court’s reasons for
its certification decision, namely that it did not have the authority to order
another district court to act. See Baugh,
    117 F.3d at 202
    . Accordingly,
Gutierrez’s challenge to the district court’s certification decision is deemed
abandoned. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). Gutierrez has not shown 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). Therefore, his motion for leave to proceed IFP on appeal
is DENIED, and his appeal is DISMISSED as frivolous. See Baugh,
    117 F.3d at 
    202 & n.24; 5TH Cir. R. 42.2.
Given Gutierrez’s history of frivolous filings, the district court in the
Western District of Texas previously barred Gutierrez from filing any new
civil actions in any federal court without first obtaining leave of that court.
We reiterate that Gutierrez is BARRED from filing any future civil actions
in federal court without first seeking leave from that court to do so.
Furthermore, he is CAUTIONED that continued frivolous, repetitive, or
otherwise abusive filings will invite the imposition of further and
progressively more severe sanctions, including dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court and any
court subject to this court’s jurisdiction. See Coghlan v. Starkey,
    852 F.2d 806
    , 817 n.21 (5th Cir. 1988) (holding that this court has the inherent power
to sanction litigants for frivolous or repetitive filings).
2