No. 99-40382

-1-

 

* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40382 

Conference Calendar

 

LEONARD B. HARMON,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Defendant-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-98-CV-464

- - - - - - - - - -

April 13, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges. 

PER CURIAM:*

Leonard B. Harmon, Texas state prisoner # 661460, appeals

the district court’s dismissal as frivolous of a 42 U.S.C. § 1983

complaint challenging the prison’s grooming policy. Harmon

asserted that the grooming policy violated his First Amendment

rights to freedom of expression and exercise of religion. On

appeal, he argues that the district court committed the following

errors: (1) it did not follow the proper rules and procedures;
No. 99-40382

-2-

(2) it erred when it dismissed his complaint as frivolous and

denied his motion for a preliminary injunction/temporary

restraining order; (3) it erred when it denied his first and

second motions to alter or amend judgment; (4) it erred when it

treated his motion to object to the finding of the court and

request to amend the judgment as a third motion to alter or amend

judgment; and (5) it erred when it denied his motion to recuse

the district court and magistrate judges. Harmon also filed a

motion to expedite the appeal or, in the alternative, to grant an

injunction pending appeal. This motion is DENIED. 

Harmon did not file a timely notice of appeal from the

dismissal of his § 1983 complaint because it was not filed within

30 days of the denial of his first Fed. R. Civ. P. 59(e) motion

to alter or amend judgment. See Fed. R. App. P. 4(a)(4)(A)(iv);

see Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983)(timely

notice of appeal is a necessary precondition to the exercise of

appellate jurisdiction). He did, however, file a timely notice

of appeal from the district court’s denial of his Fed. R. Civ. P.

60(b) motion. Thus this court has jurisdiction to consider the

issues raised in Harmon’s Rule 60(b) motion. See Williams v.

Chater, 87 F.3d 702, 705 (5th Cir. 1996). 

Harmon fails to adequately brief the issues on appeal. He

relies on conclusional assertions without identifying specific

errors and attempts to incorporate by reference arguments from

his objections to the magistrate judge’s report and

recommendation. See Al-Ra’id v. Ingle, 69 F.3d 28, 31, 32 (5th

Cir. 1995); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
No. 99-40382

-3-

1993). Moreover, this court has already addressed the central

issue on appeal and held that the prison grooming policy is

rationally related to a legitimate state interest and does not

create a cause of action under § 1983. See Scott v. Mississippi

Dept. of Corrections, 961 F.2d 77, 80-81 (5th Cir. 1992); Powell

v. Estelle, 959 F.2d 22, 23-26 (5th Cir. 1992). The district

court did not abuse its discretion when it denied Harmon’s Rule

60(b) motion. See Leedo Cabinetry v. James Sales & Distribution,

Inc., 157 F.3d 410, 412 (5th Cir. 1998).

Harmon’s appeal is without arguable merit and is frivolous. 

See Howard v. King, 707 F.2d 215, 219, 220 (5th Cir. 1983). 

Accordingly it is DISMISSED. See 5TH CIR. R. 42.2. The district

court’s dismissal as frivolous and this court’s dismissal of

Harmon’s appeal as frivolous count as two “strikes” against him

for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996). Harmon has previously

accumulated two strikes for frivolous appeals. See Harmon v.

Texas Dept. of Criminal Justice, No. 97-41512 (5th Cir. June 11,

1998); Harmon v. United States Court of Appeals, for the Fifth

Circuit, No. 97-31106 (5th Cir. May 28, 1998). Because he now

has at least three strikes under the statute, Harmon may not

proceed in forma pauperis 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. § 1915(g).

APPEAL DISMISSED; MOTION DENIED; 28 U.S.C. § 1915(g) BAR

IMPOSED.