Nathan v. Smith, 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60252
Conference Calendar
DAYRAL T. NATHAN,
Plaintiff-Appellant,
versus
P.J. SMITH, W.L. WALLEY, JR., J.J. EASLEY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-1717-LN
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Dayral T. Nathan, Mississippi prisoner # 38465, appeals the
dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii). Nathan argues that the defendants, three
state court judges, violated his due process and equal protection
rights by denying his habeas corpus application as time-barred
and successive rather than addressing the merits.
We note first that more than 10 days after the district
court's judgment, Nathan filed a motion for reconsideration,

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which is properly classified as a FED. R. CIV. P. 60(b) motion.
See Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,
667 (5th Cir. 1986). Nathan's notice of appeal, which
specifically designated the denial of the post-judgment motion as
the order being appealed, was timely only as to the denial of
that motion, and appellate review is limited to whether the
district court abused its discretion. See Halicki v. Louisiana
Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998); FED. R.
APP. P. 4(a).
Nathan argues that the defendants had a duty to hear his
state habeas application because it was filed under a state law
exception to the limitations period for applications asserting
newly discovered evidence. The district court properly concluded
that the defendants are entitled to absolute immunity from suit
and did not err by denying the motion to reconsider. See Stump
v. Sparkman, 435 U.S. 349, 356-64 (1978); Mays v. Sudderth, 97
F.3d 107, 110-11 (5th Cir. 1996).
Nathan's appeal is without merit and is frivolous. Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, his
appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2. The
dismissal of the appeal counts as a strike against Nathan for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). Nathan is CAUTIONED that if he
accumulates three strikes, he may not proceed in forma pauperis
in any civil action or appeal while he is incarcerated or

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detained in any facility unless he is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.

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