United States Court of Appeals

for the Fifth Circuit

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No. 22-10802

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Michael S. Owl Feather-Gorbey, 

Plaintiff—Appellant,

versus

United States of America, Administrator, FBOP Designation 

Center, Grand Prairie Texas, 

Defendant—Appellee.

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Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:22-CV-566

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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). Feather-Gorbey also moved to proceed in 

forma pauperis (IFP). The district court dismissed the complaint as barred 

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* 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: 03/31/2023
No. 22-10802

2

by the three strikes rule in 28 U.S.C. § 1915(g). It then denied FeatherGorbey’s motions for reconsideration under Federal Rule of Civil Procedure 

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-Gorbey filed a conditional notice of 

appeal stating that he seeks to appeal if the district court denies his motion 

for reconsideration and his request to proceed under § 1915(g). To this date, 

the district court has not accepted the magistrate judge’s recommendation 

or otherwise ruled on the Rule 60(b) motion. 

We 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 

the 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-Gorbey’s IFP

motion in this court is DENIED as unnecessary. If Feather-Gorbey

chooses, he may 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 660. 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 pending matters that are frivolous, repetitive, or 

otherwise abusive. We further remind Feather-Gorbey that until the $100 

sanction imposed in Feather-Gorbey v. NFN NLN, No. 20-10863, is paid, he 

is barred from filing any pleading in this court or in any court 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