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. 09-30564

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2010

Lyle W. Cayce

Clerk

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No. 09-30564

2

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 FED. R. APP. 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 FED. R. CIV.

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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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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