# United States Court of Appeals

f or the Fifth Circuit

____________ No. 22

- 10802

____________ Michael S. Owl Feather

- Gorbey, Plaintiff

— Appellant ,
versus United States of America, Admin i strator, FBOP Designation Center, Grand Prairie Texas , Defendant

— Appellee

.

______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:22

- CV

- 566

______________________________ Before Haynes, Engelhardt, and Oldham, Circuit Judges

. Per Curiam : * Michael S. Owl Feather

- Gorbey, federal prisoner # 33405

- 013 , filed a complaint that the district court construed, in part, to allege due process violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971)

. Feath er - Gorbey also moved to proceed in forma pauperis (IFP). The district court dismiss ed the complaint as barred

_____________________

* This opinion is not designated for publication. See 5th Cir . R. 47.5. United States Court of Appeals

Fifth Circuit 

### FILED March 31, 2023 Lyle W. Cayce Clerk Case: 22-10802 Document: 00516696593 Page: 1 Date Filed: 03/31/2023No. 22

- 10802

2 by the three strikes rule in 28 U.S.C. § 1915(g ). It then denied Feather

Gorbey’s motions for reconsideration under Federal Rule of Civil Proced ure 59(e) . Feather

- Gorbey subsequently filed a Federal Rule of Civil Procedure 60(b) motion for reconsideration. After the magistrate judge recommended denial of the Rule 60(b) motion, Feather

- Gorb ey filed a conditional notice of appeal stating that he s eeks to appeal if the district court denies his motion for reconsideration and his request to proceed under § 1915(g)

. T o this date, the district court has not accepted the magistrate judge’s recommendation or otherwise ruled on the Rule 60(b) motion. W e construe Feather

- Gorbey’s notice of appeal as an attempt to challenge the district court’s denial of his still

- pending Rule 60(b) motion. Because he seeks to appeal a non

- final , prospective ruling of the district court , the notice of appeal is premature , and this court lacks jurisdiction over th e appeal. See United States v. Cooper , 135 F.3d 960, 961

- 63 (5th Cir. 1998) ; Mosley v. Cozby , 813 F.2d 659, 660 (5th Cir. 1987)

. Accordingly, the appeal is DISMISSED , and Feather

- Go r bey ’s IFP motion in this court is DENIED as unnecessary . If Feather

- Gorbey chooses, he ma y perfect a timely appeal from the district court’s ruling on his Rule 60(b) motion if it is denied. See Mosley , 813 F.2d at 66 0
. However, he is CAUTIONED that he is still subject to the § 1915(g) bar and that any future frivolous or repetitive filings in this court or any court subject to this court’s jurisdiction may subject him to additional strikes or sanctions, as will the failure to withdraw any pendi ng matters that are frivolous, repetitive, or otherwise abusive. We further remind Feather

- Gorbey that until the $100
sa nction imposed in Feather

- Gorbey v. NFN NLN

, No. 20

- 10863, is paid, he is barred fro m filing any pleading in this court or in any cour t subject to this court’s jurisdiction without the advance written permission of a judge of the forum court

. Case: 22-10802 Document: 00516696593 Page: 2 Date Filed: 03/31/2023