     Case: 09-30564     Document: 00511074661          Page: 1    Date Filed: 04/08/2010




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

                                                  FILED
                                                                             April 8, 2010
                                     No. 09-30564
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RICKEY EVANS,

                                                   Plaintiff-Appellant

v.

TRAVIS WILLIAMS; BARRETT BOEKER; STEVE BRENGETTSY; RANDY
DUCOTE; JIMMY SMITH,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:09-CV-43


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Rickey Evans, Louisiana prisoner # 108026, has filed a motion to proceed
in forma pauperis (IFP) on appeal challenging the district court’s certification
that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
199-202 (5th Cir. 1997). The district court dismissed Evans’s 42 U.S.C. § 1983
complaint for failure to exhaust his administrative remedies because Evans
conceded that his appeal from the decision rendered following his disciplinary


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30564    Document: 00511074661 Page: 2          Date Filed: 04/08/2010
                                 No. 09-30564

proceeding was rejected as untimely. Following the denial of a postjudgment
motion for reconsideration, Evans filed a notice of appeal.
      Evans’s IFP “motion must be directed solely to the trial court’s reasons for
the certification decision.” Baugh, 117 F.3d at 202. This court’s inquiry into
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).
      The notice of appeal in this case was not filed within 30 days of the entry
of judgment. See F ED. R. A PP. P. 4(a). Evans’s motion for reconsideration was
filed more than 10 days after the entry of the order it challenged, and it is
properly construed as a motion for relief from judgment pursuant to F ED. R. C IV.
P. 60(b) that did not suspend the time for filing a notice of appeal. Id. We thus
conclude that Evans’s notice of appeal is timely only as to the denial of his
motion for reconsideration. This court reviews the denial of a Rule 60(b) motion
for an abuse of discretion. Edwards v. City of Houston, 78 F.3d 983, 995 (5th
Cir. 1996) (en banc).
      Evans argues that his appeal from the disciplinary decision was untimely
through no fault of his own. He asserts that prison officials repeatedly separated
him from his papers and damaged or destroyed his appeal drafts until he was
finally able to file an appeal several months after his disciplinary hearing.
Evans’s argument cannot be construed as one of excusable neglect warranting
relief under Rule 60(b)(1) because he alleges that his failure to file a timely
appeal was the result of reasons beyond his control. See Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394-95 (1993). Evans does not
assert, and the record does not suggest, the applicability of Rule 60(b)(2), (3), (4),
or (5). Nor do Evans’s allegations demonstrate the extraordinary circumstances
necessary to warrant relief under Rule 60(b)(6). See Hess v. Cockrell, 281 F.3d
212, 216 (5th Cir. 2002). Accordingly, the denial of Evans’s Rule 60(b) motion



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                                 No. 09-30564

was not an abuse of discretion. See Edwards, 78 F.3d at 995; Seven Elves, Inc.
v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
      The district court’s certification that Evans’s appeal is not taken in good
faith is upheld, his motion for IFP status on appeal is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24. The dismissal of this
appeal as frivolous counts as a strike for the purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We caution Evans
that once he accumulates three strikes, he may not proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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