Joseph v. TDCJ Inst Division, 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that this opinion should not be published and is not precedent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
May 11, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50896
Summary Calendar
HENSEL JOSEPH, also known as Joseph Hensel,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; S. MERCADO, Medical Doctor; UNIVERSITY OF TEXAS
MEDICAL BRANCH,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CV-1263
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Hensel Joseph, also known as Joseph Hensel, federal prisoner
# 69009-004, has filed a motion to proceed in forma pauperis
(IFP) on appeal challenging the district court’s certification
that his appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997). The district
court dismissed his 42 U.S.C. § 1983 complaint without prejudice

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as frivolous. Joseph did not file a notice of appeal; almost two
years later, he moved to proceed IFP and requested a copy of the
record. After the district court denied both this motion and a
motion for reconsideration, Joseph filed a notice of appeal.
By moving for IFP status, Joseph has challenged the district
court’s certification decision. Baugh, 117 F.3d at 202. The IFP
“motion must be directed solely to the trial court’s reasons for
the certification decision.” Id. This court’s inquiry into
good faith “is limited to whether the appeal involves ‘legal
points arguable on their merits (and therefore not frivolous).’”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (quoting Anders
v. California, 386 U.S. 738, 744 (1967)).
We first conclude that Joseph’s notice of appeal is timely
only as to the denial of his motion for reconsideration of the
denial of his motion to proceed IFP. Because this motion for
reconsideration was filed more than 10 days after the entry of
the order it challenged, it is properly construed as a motion for
relief from judgment pursuant to FED. R. CIV. P. 60(b). This
court reviews the denial of a Rule 60(b) motion for an abuse of
discretion. See Travelers Ins. Co. v. Liljeberg Enter., Inc., 38
F.3d 1404, 1408 (5th Cir. 1994).
As the district court noted, when Joseph filed his motion to
proceed IFP, he had no pending appeal, and the time for filing a
notice of appeal had passed. Therefore, we conclude that the
grant of IFP status would have been an empty gesture as it would

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have allowed Joseph to proceed IFP on a non-existent appeal. The
district court correctly concluded that Joseph’s appeal from the
denial of reconsideration of this meaningless IFP motion would be
frivolous. See United States v. Early, 27 F.3d 140, 142 (5th
Cir. 1994) (noting appeal was “from the denial of a meaningless,
unauthorized motion”).
The district court’s certification that Joseph’s appeal is
not taken in good faith is upheld, his motion for IFP status on
appeal is DENIED, and his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24. The dismissal of Joseph’s complaint
in the district court as frivolous and the dismissal of this
appeal as frivolous both count as “strikes” for the purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). We caution Joseph 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).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

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