IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50675
Conference Calendar
ALFRED C. ANGELLE,
Plaintiff-Appellant,
versus
LOUIS E. GIBSON, also known as Doctor Gibson,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-125
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Alfred C. Angelle, Texas prisoner No. 684294, seeks leave to
proceed in forma pauperis (IFP) following a certification
pursuant to 28 U.S.C. § 1915(a)(3) that his appeal is taken in
bad faith. We note initially that the district court relied in
part on evidence outside of the pleadings when dismissing
Angelle’s complaint as malicious pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). The dismissal thus operated as a grant of
the defendant’s summary-judgment motion. Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir. 1990).
*
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that this opinion should not be published and is not precedent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. 00-50675
-2-
The district court provided adequate reasons in support of
its determination that Angelle’s appeal is not taken in good
faith. Angelle has provided no argument challenging the district
court’s determinations as to the merits of his complaint.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
Angelle’s appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The
dismissal of Angelle’s appeal counts as a “strike” for purposes
of 28 U.S.C. § 1915(g). Because the district court’s dismissal
for failure to state a claim acted as a grant of summary
judgment, the district court’s judgment does not count as a
“strike.” Angelle is cautioned that once he accumulates three
strikes, he will not be able to proceed IFP in any civil action
or appeal while he is imprisoned “unless [he] is under imminent
danger of serious physical injury.” § 1915(g).
IFP DENIED. APPEAL DISMISSED. SANCTION WARNING ISSUED.