     Case: 18-50233      Document: 00514725193         Page: 1    Date Filed: 11/15/2018




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

                                                                              FILED
                                      No. 18-50233                    November 15, 2018
                                                                         Lyle W. Cayce
SCOTT ASH JAMES ZIRUS,                                                        Clerk


                                                 Plaintiff - Appellant

v.

SHARON FAYE KELLER, in her official capacity; LAWRENCE E. MEYERS,
in his official capacity; BERT RICHARDSON, in his official capacity; KEVIN
P. YEARY, in his official capacity; CHERYL A. JOHNSON, in her official
capacity; MICHAEL E. KEASLER, in his official capacity; BARBARA P.
HERVEY, in her official capacity; ELSA ALCALA, in her official capacity;
DAVID NEWELL, in his official capacity; M. REX EMERSON, in his official
capacity; SCOTT MONROE, in his official capacity,

                                                 Defendants - Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-428


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Scott Ash James Zirus, Texas prisoner # 1640002, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
Federal Rule of Civil Procedure 60(b) motion, arguing that he should not have


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-50233      Document: 00514725193        Page: 2     Date Filed: 11/15/2018


                                     No. 18-50233

to pay the balance of his filing fee under the Prison Litigation Reform Act
(PLRA) because the district court construed his 42 U.S.C. § 1983 complaint as
a request for a writ of mandamus. The district court denied the motion, stating
that Zirus had induced any such error by seeking leave to proceed IFP in an
action he filed pursuant to § 1983, and certified that an appeal would not be
taken in good faith.
      By moving to proceed IFP on appeal, Zirus challenges the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). However, “[u]nder the doctrine of invited
error, [plaintiff] may not complain of any error by the district court in applying
the PLRA filing fee requirements because [plaintiff] induced any such error by
seeking leave to proceed IFP in an action he filed as a 42 U.S.C. § 1983 action.”
Nabelek v. Honorable Court of Criminal Appeals & All of Its Active Justices,
112 F. App'x 948, 949 (5th Cir. 2004) (unpublished) 1 (citing United States v.
Baytank (Houston), Inc., 934 F.2d 599, 606-07 (5th Cir. 1991)). Because Zirus
induced any error by the district court in applying the PLRA filing fee
requirements, he has failed to raise a nonfrivolous argument that the district
court abused its discretion by denying his Rule 60(b) motion. See Howard,
707 F.2d at 220.
      Accordingly, Zirus’s motion for leave to proceed IFP on appeal is
DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous does not
count as a strike for purposes of 28 U.S.C. § 1915(g). See Nabelek, 112 F. App’x
at 949.



      1  Although unpublished opinions issued on or after January 1, 1996, are not
precedential, they may nevertheless be persuasive. See Ballard v. Burton, 444 F.3d 391, 401
& n.7 (5th Cir. 2006); 5TH CIR. R. 47.5.4.


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