David Payne v. Supreme Court of Mississippi, No. 19-60362 (5th Cir. 2020)
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Case: 19-60362 Document: 00515651000 Page: 1 Date Filed: 11/24/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 24, 2020 No. 19-60362 Lyle W. Cayce Clerk David Edward Payne, Plaintiff—Appellant, versus Supreme Court of Mississippi, Defendant—Appellee. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:18-CV-570 Before Willett, Ho, and Duncan, Circuit Judges. Per Curiam:* David Edward Payne, Mississippi prisoner # 08755, moves this court for leave to proceed in forma pauperis (IFP) to appeal the district court’s denial of his motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 60(b) following the denial of his petition for a writ of mandamus. * Payne’s IFP motion is a challenge to the district court’s Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60362 Document: 00515651000 Page: 2 Date Filed: 11/24/2020 No. 19-60362 determination that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Before this court, Payne asserts that the district court erred in denying his petition for a writ of mandamus. Because Payne did not file a notice of appeal following the denial of his petition, this court lacks jurisdiction to consider it. See Bowles v. Russell, 551 U.S. 205, 214 (2007); 28 U.S.C. § 2107(a). In addition, Payne has abandoned, by failing to brief, any argument addressing the district court’s denial of his motion to alter or amend the judgment. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, Payne’s motion for leave to proceed IFP is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. His motion for certification of law to the United States Supreme Court is DENIED. However, the dismissal does not count as a strike under 28 U.S.C. § 1915(g) due to the underlying nature of the action. See Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). 2
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