Alvin HARVEY, Plаintiff-Appellant, v. Richard L. STALDER; J. Goodwin; M. Rhodes; Morman, Sergeant; Ward, Sergeant; Ferguson, Sergeant, Defendants-Appellees.
No. 04-30277
United States Court of Appeals, Fifth Circuit
Decided March 11, 2005
130 Fed. Appx. 654
Alvin Harvey, Louisiana Department of Public Safety & Corrections David Wade Correctional Center, Homer, LA, pro sе. Before REAVLEY, JOLLY and PRADO, Circuit Judges.
The judgment of the district court is affirmed because the precedent of this circuit requires more than vеrbal abuse to raise a cause of action under
AFFIRMED.
Johnniе R. PROPES, Plaintiff-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division; Mark Diaz, Warden; Dean Duerksen, Dr.; William Gonzales, Dr., Defendants-Appellees.
No. 04-50822
United States Court of Appeals, Fifth Circuit
April 20, 2005
130 Fed. Appx. 654
Conference Calendar. Johnnie R. Propes, Teague, TX, pro se. Before JONES, SMITH, and PRADO, Circuit Judges.
Johnnie R. Propes, Texas state prisoner # 1178904, has mоved for leave to proceed in forma paupеris (IFP) on appeal following the district court‘s certification pursuant to
Because his notice of appeal wаs filed after the magistrate judge issued his re-
A premature notice of appeal is valid only when the order appeаled from announces a decision that would be appеalable if it were immediately followed by the entry of judgment. FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276-77, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991); see also United States v. Cooper, 135 F.3d 960, 963 (5th Cir.1998). Even if it were immediately followed by the entry of judgment, the magistrate judge‘s rеport and recommendation was not appealable. See Cooper, 135 F.3d at 962-963; see also Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). As such, Propes‘s notice of appeal was insufficient to confer jurisdiction on this court. See FirsTier, 498 U.S. at 276-77; see also Cooper, 135 F.3d at 962-63. Becausе Propes seeks to appeal a nonappealable order, his appeal has no arguable basis in law or fact and, therefore, is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Moreover, as Propes failed to address the district court‘s stated grounds for сertifying that his appeal was not taken in good faith, he has waived the issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Accordingly, Propes‘s request for leavе to proceed IFP on appeal is DENIED and the appeal is DISMISSED as frivolous.
Because Propes has accumulated at least three strikes under
Propes‘s motions for the aрpointment of counsel on appeal and for an order directing prison officials to tender to him a copy of his medical records are DENIED.
IFP DENIED; APPEAL DISMISSED;