IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40890

DONALD R. HOWARD,

Plaintiff-Appellant

v.

DAVID LANGSTON; GARY WRIGHT; VIRGINIA SCHAFER; TARA 

PATTON; LORI FORTNER; ET AL,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:12-CV-250

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Donald R. Howard, Texas prisoner # 1397355, moves for leave to proceed 

in forma pauperis (IFP) on appeal from the denial of his postjudgment motions 

to amend his complaint, withdraw his consent to proceed before the magistrate 

judge, file a supplemental complaint, and proceed IFP in the district court. 

Prior to his filing of those motions, this court dismissed as frivolous his appeal 

from the final judgment on his original complaint in this case. Howard v. 

* 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

May 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40890

Langston, 544 F. App’x 427 (5th Cir. 2013), cert. denied, 134 S. Ct. 1316 (2014). 

In that opinion, we imposed the bar under 28 U.S.C. § 1915(g), which 

prohibited Howard 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. Id. at 428-29.

Howard contends that his supplemental complaint sufficiently alleged 

an imminent danger of serious physical injury. He does not address the fact 

that he moved to file the supplemental complaint after both the district court 

and this court had already disposed of his case. See Vielma v. Eureka Co., 218 

F.3d 458, 468 (5th Cir. 2000) (“Post-judgment amendment to a complaint can 

only occur once the judgment itself is vacated under FED. R. CIV. P. 59 or 60.”). 

He also makes no argument regarding the denial of his motion to amend his 

complaint, and we do not consider his argument that his consent to proceed 

before the magistrate judge expired upon retirement of the original magistrate 

judge in this case, as he raises that argument for the first time here. See 

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). This 

appeal is without arguable merit and is dismissed as frivolous. See 5TH CIR.

R. 42.2. Howard’s motion for leave to proceed IFP on appeal is denied.

Howard has not heeded our previous warning against frivolous filings. 

See Howard, 544 F. App’x at 428. Accordingly, it is ordered that Howard pay 

a sanction in the amount of $100 to the Clerk of this Court. Until the sanction 

has been paid in full, Howard is barred from filing any pleading in this court 

or any court subject to this court’s jurisdiction, unless he first obtains leave of 

the court in which he seeks to make the filing. We reiterate that Howard has 

accumulated three strikes under § 1915(g) and 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. Howard is 

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No. 13-40890

additionally warned that future frivolous, repetitive, or otherwise abusive 

filings will invite the imposition of additional and progressively more severe 

sanctions and that he should review any pending appeals and actions and move 

to dismiss any that are frivolous.

APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP 

DENIED; SANCTION IMPOSED; SANCTION WARNING ISSUED.

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