IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60044

c/w No. 16-60691

WINFRED FORKNER, 

Plaintiff-Appellant 

v. 

MARSHALL FISHER, sued individually and in their official capacities; 

RAYMOND T. BYRD, sued individually and in their official capacities; 

MARSHALL TURNER, sued individually and in their official capacities; MIKE 

HATTEN, sued individually and in their official capacities; RONALD 

WOODALL, sued individually and in their official capacities, 

Defendants-Appellees 

Appeals from the United States District Court 

for the Southern District of Mississippi 

USDC No. 1:15-CV-96

Before JONES, SMITH, and DENNIS, Circuit Judges. 

PER CURIAM:*

Winfred Forkner, Mississippi prisoner # K5766, filed a civil rights action 

against several defendants. According to his factual allegations, Forkner has 

Hepatitis C, which is being monitored through laboratory tests. Forkner

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 27, 2017

Lyle W. Cayce

Clerk

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claimed that, by refusing to provide medication or other treatment for his 

Hepatitis C condition, the defendants had been deliberately indifferent to his 

serious medical needs, in violation of his rights under the Eighth Amendment. 

In his complaint, Forkner requested a preliminary and permanent injunction, 

as well as compensatory and punitive damages. 

Forkner moved for a preliminary injunction and for partial summary 

judgment, but the district court denied these motions in a single order. He also 

objected to the magistrate judge’s grant of a request by one of the defendants 

to extend the time for filing dispositive motions, but the district court issued 

an order overruling his objection. Prior to the issuance of final judgment, 

Forkner filed a timely notice of appeal from the above orders, as well as other 

pretrial orders. The appeal was assigned No. 16-60044, and the district court 

denied Forkner’s request to proceed in forma pauperis (IFP) on appeal. 

The district court ultimately granted summary judgment in favor of all 

defendants, thereby effectively ending the litigation. See Cunningham 

v. Hamilton Cty., Ohio, 527 U.S. 198, 204 (1999). At this

point, Forkner could have filed an appeal to this court; instead,

approximately 41 days after entry of final judgment, Forkner moved for relief 

from the judgment pursuant to Federal Rule of Civil Procedure 60(b)(4). The 

district court denied the Rule 60(b)(4) motion. Forkner timely appealed from 

that denial, and the district court denied Forkner’s request to proceed IFP on 

appeal, certifying that the appeal was not taken in good faith. The appeal from 

the denial of the Rule 60(b)(4) motion was assigned No. 16-60691. 

Forkner now moves to proceed IFP in both appeals. In the interest of 

judicial economy, we consolidate the appeals. See FED. R. APP. P. 3(b)(2); 

United States v. Rodriguez, 564 F.3d 735, 737 (5th Cir. 2009). Forkner’s motion 

for reconsideration of the denial of his motion for a stay is denied. 

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As to his IFP motion in No. 16-60044, we lack jurisdiction over the appeal 

to the extent Forkner seeks to challenge the denial of his motion for a 

preliminary injunction, as the entry of final judgment renders moot the order 

regarding preliminary injunctive relief. See Louisiana World Exposition, Inc. 

v. Logue, 746 F.2d 1033, 1038 (5th Cir. 1984); McRae v. Hogan, 576 F.2d 615, 

617 (5th Cir. 1978). Forkner’s challenge to the denial of partial summary 

judgment cannot be considered. See Ardoin v. J. Ray McDermott & Co., 641 

F.2d 277, 278-79 (5th Cir. 1981). Finally, in view of the broad discretion 

enjoyed by the district court in such matters, see Hetzel v. Bethlehem Steel 

Corp., 50 F.3d 360, 367 (5th Cir. 1995), Forkner’s appeal of the order extending 

the deadline for filing dispositive motions is frivolous. In view of the foregoing, 

we deny Forkner’s IFP motion and dismiss the appeal in No. 16-60044 in part 

for lack of jurisdiction as moot and in part as frivolous. See Baugh v. Taylor, 

117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5TH CIR. R. 42.2. 

In No. 16-60691, Forkner asserts in his IFP motion that he is in 

imminent danger of serious physical injury within the meaning of 28 U.S.C, 

§ 1915(g) due to his Hepatitis C condition. However, Forkner makes no 

attempt to show that the district court’s judgment dismissing his civil rights 

action was void for purposes of Rule 60(b)(4). We deny Forkner’s IFP motion 

and dismiss the appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH 

CIR. R. 42.2. 

The dismissals of the instant appeals as frivolous, in part or in whole, 

count as strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 

383, 388 (5th Cir. 1996). Previously, Forkner incurred two strikes under 

§ 1915(g) based on the dismissal as frivolous of a civil rights action and the 

dismissal of his appeal as frivolous. See Forkner v. Wilkinson Cty., 112 F. App’x 

336, 337 (5th Cir. 2004). Forkner is hereby advised that because he has now 

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accumulated at least three strikes under § 1915(g), he is barred from 

proceeding 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). 

APPEALS CONSOLIDATED; IFP MOTIONS DENIED; MOTION FOR 

RECONSIDERATION DENIED; APPEAL IN NO. 16-60044 DISMISSED IN 

PART FOR LACK OF JURISDICTION AS MOOT AND IN PART AS 

FRIVOLOUS; APPEAL IN NO. 16-60691 DISMISSED AS FRIVOLOUS; 

THREE STRIKES BAR IMPOSED.

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