Opinion
No. 2:04-CV-0060.
July 30, 2004
RECOMMENDATION TO DENY MOTIONS FOR LEAVE TO APPEAL AND TO DENY CERTIFICATES OF APPEALABILITY
Petitioner, MICHAEL LOU GARRETT, has filed two (2) Notices of Appeal in the above-referenced and numbered cause. He has also filed two (2) motions for leave to appeal as well as two (2) petitions for certificate of appealability.
I. MOTION FOR LEAVE TO FILE APPEAL
In his motions for leave to appeal, petitioner acknowledges he has had at least five (5) cases qualifying as strikes dismissed under the Prison Litigation Reform Act and is not eligible to proceed in forma pauperis with respect to civil rights actions. He further advises he has previously been sanctioned and barred from filing any new civil filings in forma pauperis whether sounding in habeas or in any other area of civil law unless he first obtains judicial permission. To the extent the motion for leave to file appeal has not been mooted by the Notices of Appeal, also filed July 22, 2004 and July 26, 2004, and to the extent the motions are directed to this Court rather than to the United States Court of Appeals, then it is the opinion and recommendation of the United States Magistrate Judge that the motions for leave to appeal should be denied for the reasons stated in the Order declining to grant leave entered by the Magistrate Judge in this case on March 18, 2004.
The first motion was filed July 22, 2004, and was directed at the July 7, 2004 Order overruling objections. The second motion was filed July 26, 2004, and was directed at the July 16, 2004 Order dismissing petition for writ of habeas corpus and Judgment.
The motions for leave to file appeal do not indicate whether they are directed to the District Court or to the Court of Appeals for the Fifth Circuit.
II. CERTIFICATE OF APPEALABILITY
It is the opinion and recommendation of the Magistrate Judge that no certificate of appealability issue in this case. Petitioner GARRETT has failed to make a substantial showing of constitutional error. Further, petitioner GARRETT was not denied permission to proceed in forma pauperis in an initial habeas corpus action. Instead, the Court declined to grant petitioner relief from sanctions previously issued by another court, the result of which was that petitioner GARRETT was required to pay the filing fee. There is significant difference between a case where an indigent non-abusive litigant is not granted leave to proceed in forma pauperis in an initial habeas corpus action and a case where the court merely declines to grant an abusive litigant leave to proceed with a lawsuit and avoid the impact of previously issued sanctions.
This is not an unusual circumstance. Indigent prisoners who accumulate three (3) PLRA strikes are routinely not allowed to proceed in forma pauperis in § 1983 lawsuits.
III. RECOMMENDATION
For the reasons set forth above and for the reasons set forth in the Magistrate Judge's Order of March 18, 2004, declining to grant relief from sanctions, it is recommended that no certificate of appealability issue, and that the petitions for certificates of appealability filed July 22 and 26, 2004, be DENIED.IV. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
IT IS SO RECOMMENDED.