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Risby v. United States

United States Court of Appeals, Fifth Circuit

August 19, 2013

WILLIAM MORRIS RISBY, Plaintiff-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:13-CV-228

Before KING, DAVIS, and ELROD, Circuit Judges.


William Morris Risby seeks leave to proceed in forma pauperis (IFP) on appeal from the dismissal of his civil rights complaint against the Bureau of Prisons (BOP), the Federal Correctional Institute in Fort Worth, and employees of that prison wherein he alleged that that the defendants were medically negligent and failed to provide timely treatment with respect to a burn injury Risby suffered while incarcerated. In two prior district court cases, Risby was barred from filing any civil action without first obtaining permission from the district court. Because Risby failed to seek permission prior to filing the instant action, the district court dismissed Risby's complaint, denied Risby's request to proceed IFP on appeal, and certified that the appeal was not taken in good faith.

Risby's IFP motion is a challenge to 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. 1992). A movant for leave to proceed IFP on appeal must show that he is a pauper and that the appeal presents nonfrivolous issues. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982); § 1915(a)(3).

Risby contends that the district court erred in dismissing his complaint without allowing him to amend his complaint or conducting a Spears[1] hearing. Because the district court's dismissal was on the basis of a prior sanction imposed, neither an amendment to the complaint nor a Spears hearing would have been relevant. Moreover, Risby does not indicate what additional information he would have provided had he been ordered to amend. Risby also argues that he was unaware of the sanction and alleges that the BOP tampered with his mail. However, this argument is conclusory and does not challenge the district court's order of dismissal.

On appeal, Risby does not dispute the existence of the sanction imposed by the Northern District of Texas. However, he argues, in conclusory fashion, that the district court's dismissal of his complaint denies him his right of access to the courts.

The dismissal of a suit for failure to comply with an earlier sanction order is reviewed for an abuse of discretion. Gelabert v. Lynaugh, 894 F.2d 746, 747-48 (5th Cir. 1990). Because Risby fails to present any argument showing an ability to pursue a nonfrivolous and arguable legal claim for relief, Risby's appeal does not present a legal issue arguable on its merits and is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

Accordingly, the motion for leave for IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2. Risby's motion for the appointment of counsel is DENIED. Risby is WARNED that future frivolous appeals may result in the imposition of 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.

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