Case: 10-10664 Document: 00511423014 Page: 1 Date Filed: 03/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 24, 2011
No. 10-10664
Summary Calendar Lyle W. Cayce
Clerk
BURRELL JOHNSON, JR.,
Plaintiff-Appellant
v.
ROSIE M. JACKSON,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CV-790
Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.
PER CURIAM:*
Burrell Johnson, Jr., Texas prisoner # 243195, moves this court to proceed
in forma pauperis (IFP) in this appeal from the district court’s dismissal of his
42 U.S.C. § 1983 complaint for failure to state a claim upon which relief may be
granted. The district court denied his request to proceed IFP on appeal,
certifying that the appeal was not taken in good faith. Johnson’s IFP motion in
this court is a challenge to the district court’s certification that his appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1992).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10664 Document: 00511423014 Page: 2 Date Filed: 03/24/2011
No. 10-10664
As Johnson has not adequately addressed the reasons for the district
court’s certification decision, it is the same as if he had not challenged that
decision. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987); Baugh, 117 F.3d at 202. Because Johnson has not shown
that he will present any nonfrivolous issue on appeal, his motion for leave to
proceed IFP is denied and this appeal is dismissed as frivolous. See Baugh, 117
F.3d at 202 n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5 TH C IR.
R. 42.2.
The district court’s dismissal of Johnson’s § 1983 complaint for failure to
state a claim and our dismissal of this appeal as frivolous both count as strikes
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Johnson is cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to 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. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
2