IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50939
Conference Calendar
HERMAN WHITE,
Plaintiff-Appellant,
versus
CARLOS BOWEN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-286
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Herman White, Texas prisoner No. 684880, 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. White’s contention that the district court erred by
dismissing his complaint under the “three-strikes” provision of
28 U.S.C. § 1915(g) is frivolous because the district court
dismissed White’s complaint on the merits for failure to state a
claim. White has presented no argument challenging the district
court’s determination that he failed to state a claim upon which
*
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that this opinion should not be published and is not precedent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. 00-50939
-2-
relief could be granted. Thus, he has failed to show that his
appeal is not frivolous or that the district court erred in
determining that the appeal is not taken in good faith. See
Lewis v. Lynn, 236 F.3d 766, 768 (2001); Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993) (28 U.S.C. § 2254 case).
Because White has failed to show that his appeal involves “‘legal
points arguable on their merits (and therefore not frivolous),’”
the motion for IFP is DENIED and the appeal is DISMISSED AS
FRIVOLOUS. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);
see Baugh v. Taylor, 117 F.3d 197, 202 and n.24 (5th Cir. 1997).
The district court’s dismissal of the complaint for failure
to state a claim and this court’s dismissal of the appeal as
frivolous count as two “strikes” for purposes of § 1915(g).
White 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. SANCTIONS WARNING ISSUED.
5TH CIR. R. 42.2.