     Case: 10-60356 Document: 00511381391 Page: 1 Date Filed: 02/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 14, 2011
                                     No. 10-60356
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LARRY EDWARD HYMES,

                                                   Plaintiff-Appellant

v.

STATE OF MISSISSIPPI, and its Legislature, Agencies and Tribunals;
GEORGE KELLY; GEORGE DUNBAR PREWITT, JR.; WILLARD MCILWAIN,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:05-CV-181


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Larry Edward Hymes seeks leave to proceed in forma pauperis (IFP) on
his appeal from the district court’s denial of his motion for relief from judgment
pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. This court
upheld on appeal the district court dismissal of Hymes’s complaint against the
State and its agencies as barred by the State’s Eleventh Amendment and thus




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 10-60356

did not address the dismissal of the complaint as barred by the Rooker-Feldman 1
doctrine. Hymes v. State of Miss., 289 F. App’x 673 (5th Cir. 2008). In his post-
appeal Rule 60(b)(6) motion, Hymes challenged the magistrate judge’s
prejudgment denial of his motion to amend the complaint to add the individual
state court judges who comprised the “tribunals” as named defendants.
       Hymes’s motion to proceed IFP on appeal is construed as a challenge to the
district court’s certification decision that the appeal was not taken in good faith.
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). Thus, his request “must be
directed solely to the trial court’s reasons for the certification decision.” Id. This
court’s inquiry into whether the appeal is taken in 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) (internal
quotation marks and citation omitted).
       Hymes challenges the district court’s determination that his motion to
amend was untimely and that, even if the complaint had been amended, it was
barred by the Rooker-Feldman doctrine. For the first time in the instant appeal,
Hymes challenges the validity of the scheduling order and argues that he
showed good cause for deviating from that order.
       The record shows that Hymes sought to amend to name certain state
government officials and, later, to add the state court judges after the
amendment deadline had expired, and Hymes did not seek an extension of that
deadline. As this court noted in dicta in the prior appeal, the lower court had
broad discretion in enforcing its scheduling order. Hymes, 289 F. App’x at 675.
None of Hymes’s arguments present the type of exceptional circumstances
warranting Rule 60(b)(6) relief from the district court’s final judgment. See
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993).



       1
        See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 482 (1983) .

                                              2
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                                   No. 10-60356

Nor do they show that the denial of his Rule 60(b)(6) motion was so unwarranted
as to constitute an abuse of discretion. See Seven Elves, Inc. v. Eskenazi, 635
F.2d 396, 402 (5th Cir. 1981). Accordingly, he has not shown nonfrivolous issue
for appeal.
      Hymes’s appeal does not involve legal points that are arguable on the
merits, see Howard, 707 F.2d at 220, and his IFP motion is therefore denied.
See Baugh, 117 F.3d at 197. Because the resolution of Hymes’s challenge to the
district court’s certification order requires resolution of the merits of his appeal,
the appeal is dismissed as frivolous. See id.; see also 5 TH C IR. R. 42.2.
      IFP MOTION DENIED; APPEAL DISMISSED.




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