Barry Emmett v. Allred Unit, 428 F. App'x 352

Emmett, a Texas prisoner, moved for a preliminary injunction to halt TDCJ retaliation before he filed a §1983 action.
The district court denied the injunction motion without prejudice on May 15, 2009.
On June 8, 2010, the district court denied numerous post-judgment motions, including a Rule 60 motion, and certified that Emmett’s appeal was not taken in good faith.
Emmett filed a notice of appeal and sought IFP status, which the district court denied as not in good faith.
The appellate court nationally addresses only the June 8, 2010 order; the May 15, 2009 judgment is not reviewable due to timeliness.
The court ultimately dismisses the appeal as frivolous, imposes sanctions warnings, and notes Emmett has three strikes under §1915(g).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal	Emmett argues the appeal covers the May 15, 2009 judgment.	The May 15 judgment is untimely; only the June 8, 2010 order is appealable.	Appeal limited to June 8, 2010 order; May 15, 2009 judgment unreviewable.
Rule 60(b) abuse of discretion	Rule 60(b) relief should have been granted for injunctive relief issues.	District court did not abuse discretion denying Rule 60(b) relief.	No abuse; denial sustained.
Whether the injunction issue should be liberally construed as a TRO	Original injunction motion could be liberally construed as a TRO.	Not raised in post-judgment motions, not for review on appeal.	Not considered on appeal.
Jurisdiction after §144 affidavit	District court lacked jurisdiction after §144 affidavit filing.	Judge could rule on legal sufficiency of §144 affidavit; no abuse.	No abuse; district court properly addressed the motion.
Good faith and frivolousness of the appeal	Appeal should be in good faith and not frivolous.	Appeal not taken in good faith; frivolous and sanctionable.	Appeal dismissed as frivolous; IFP denied; sanctions warning issued.

Carson v. Polley, 689 F.2d 562 (5th Cir. 1982) (tests for IFP: economic eligibility and good faith; probability of success not required)
Howard v. King, 707 F.2d 215 (5th Cir. 1983) (good faith inquiry for IFP limited to arguable merits)
Bailey v. Cain, 609 F.3d 763 (5th Cir. 2010) (denial of Rule 60(b) motion does not bring up underlying judgment)
Bowles v. Russell, 551 U.S. 205 (U.S. 2007) (timeliness and finality of judgments; jurisdictional limits)
Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (dismissal for frivolous or malicious filings; sanctions authority)
Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131 (5th Cir. 2004) (Rule 60(b) standards and discretionary review)
Doddy v. Oxy USA, Inc., 101 F.3d 448 (5th Cir. 1996) (district court may rule on §144 affidavits on the merits)
United States v. Merkt, 794 F.2d 950 (5th Cir. 1986) (considerations of judge's neutrality and related motions)
Norman v. Apache Corp., 19 F.3d 1017 (5th Cir. 1994) (implicit denial of motion may be treated as denial of relief)
Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288 (5th Cir. 1990) (evaluating perceived bias or recusal motions for abuse of discretion)
Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (Rule 60(b) abuse standard; discretion in relief determinations)