IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50373
Conference Calendar
JIMMIE BATISTE,
Plaintiff-Appellant,
versus
DAVID MOYA; ET AL.,
Defendants,
RUSSELL WEST; RAYMOND NOBLE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CV-86
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August 22, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Jimmie Batiste, Texas prisoner # 531735, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal, following
the district court’s denial of relief on his civil rights action
after a nonjury trial. By moving for IFP status, Batiste is
challenging the district court’s certification that IFP status
should not be granted on appeal because his appeal is frivolous
*
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that this opinion should not be published and is not precedent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. 00-50373
-2-
and is not taken in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
Batiste argues that the district court’s refusal to grant
him IFP status on appeal violates the Due Process Clause and the
Equal Protection Clause. This court has already ruled that the
Prison Litigation Reform Act (PLRA) does not violate either one.
See Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997).
Batiste has not shown that he will raise a nonfrivolous issue on
appeal. Accordingly, we uphold the district court’s order
certifying that the appeal is frivolous. Batiste’s request for
IFP status is DENIED, and his appeal is DISMISSED as frivolous.
See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2
The dismissal of this appeal as frivolous counts as a
“strike” for purposes of § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). Batiste is warned that if he
accumulates three “strikes” pursuant to § 1915(g), he may 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 DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING
ISSUED.