Figgs v. Clay, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50432
Summary Calendar
CEDRIC CHARLES FIGGS,
Plaintiff-Appellant,
versus
EVELYN CLAY; MISSIALDIME,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CV-153
--------------------
March 17, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cedric Charles Figgs, Texas prisoner # 623481, appeals the
district court’s denial of his FED. R. CIV. P. 60(b)(6) motion to
reinstate his 42 U.S.C. § 1983 civil rights lawsuit, which the
district court previously dismissed pursuant to Figgs’ FED. R.
CIV. P. 41(a)(2) voluntary-dismissal motion. The district court
determined that the FED. R. CIV. P. 60(b)(6) motion was untimely
and without merit. The district court denied Figgs’ motion to

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No. 02-50432
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appeal in forma pauperis (“IFP”) and certified that the appeal
was not taken in good faith under 28 U.S.C. § 1915(a)(3) and FED.
R. APP. P. 24(a). Figgs has filed a motion for leave to appeal
IFP.
By moving for leave to appeal IFP, Figgs is challenging the
district court’s certification. Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). Figgs has not shown that the district court
abused its discretion in denying the FED. R. CIV. P. 60(b)(6)
motion as untimely because Figgs has not demonstrated
“extraordinary circumstances” warranting relief. Pioneer Inv.
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.
380, 393 (1993).
This appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Figgs’ IFP
motion is DENIED and this appeal is DISMISSED. See 5TH CIR.
R. 42.2; Baugh, 117 F.3d at 202 & n.24.
The dismissal of this appeal counts as one strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Figgs is WARNED that if he
accumulates three strikes, he will not be allowed to proceed IFP
in any civil action or appeal while he is incarcerated or
detained in any facility unless he is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.

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