IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20005 Conference Calendar

DONALD RAY HOWARD,

Plaintiff-Appellant,

versus

S.K. KENNEDY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CV-3680 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Donald Ray Howard, Texas prisoner # 552132, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal, following the district court’s denial of relief on his

civil rights complaint after a bench trial. By moving for IFP,

Howard is challenging the district court’s certification that IFP

status should not be granted on appeal because his appeal is not

taken in good faith. See Baugh v. Taylor,

(5th

Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-20005 -2-

The majority of Howard’s IFP motion constitutes a review of

the Prison Litigation Reform Act and its effects on prisoners

proceeding IFP. Although Howard contends that this court must

allow him to proceed IFP if it certifies that his appeal is taken

in good faith, he does not argue any issues to show that his

appeal is taken in good faith. He does, however, list three

issues that he apparently intends to raise on appeal. He first

asserts that disputed issues of material fact exist about

defendant Kennedy’s use of excessive force against Howard. The

case went to trial, and the court resolved all disputed issues in

favor of Kennedy. To the extent Howard wishes to challenge the

court’s credibility findings, they will not be reviewed on

appeal. See Martin v. Thomas,

, 453 n.3 (5th Cir.

1992).

Howard also contends that he was unable to present his case

because Kennedy failed to provide him with a copy of the pretrial

order within the time set forth by the district court. He has

failed to provide any evidence that he was prevented from

presenting testimony or evidence as a result of the lack of a

joint pretrial order. Howard also contends that the district

court improperly failed to sanction Kennedy for this error.

Although FED. R. CIV. P. 16(f) permits sanctions for failing to

obey a scheduling or pretrial order, sanctions should be imposed

only if the noncompliance was not substantially justified.

Kennedy’s attorney admitted that he sent the wrong document to

Howard originally and that this error was unintentional. Howard

has not disputed this statement. Kennedy’s attorney also offered No. 00-20005 -3-

to agree to a continuance so that Howard would have time to

respond, but Howard refused a continuance. Under these

circumstances, Howard has failed to show that the district

court’s failure to impose sanctions for failing to send the joint

pretrial order in a timely manner was error. Howard’s appeal is

without arguable merit and is thus frivolous. See Howard v.

King,

(5th Cir. 1983).

Accordingly, we uphold the district court’s order certifying

that the appeal is not taken in good faith and denying Howard IFP

status on appeal, we deny the motion for leave to proceed IFP,

and we DISMISS Howard’s appeal as frivolous. See Baugh,

n.24; 5TH CIR. R. 42.2.

APPEAL DISMISSED.