IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21026
Conference Calendar
RUSSELL EUGENE GALER, II,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-2742
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Russell Eugene Galer II, Texas prisoner #315395, seeks leave
to proceed in forma pauperis (IFP) on appeal following the
district court’s certification that his appeal is taken in bad
faith. Galer’s request for appointment of counsel on appeal is
DENIED.
Galer argues that it is fundamentally unfair to require
indigent prisoners to pay filing fees. Galer did not raise his
argument in the district court. We do not consider Galer’s
*
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that this opinion should not be published and is not precedent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. 00-21026
-2-
contention. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997)(a litigant’s request “must be directed solely to the trial
court’s reasons for the certification decision.”) Moreover, an
IFP motion following a bad-faith certification triggers the
financial screening and assessment provisions of the Prison
Litigation Reform Act (PLRA). Id. Galer’s contention therefore
is unavailing on its merits.
Galer has abandoned any substantive challenge to the
dismissal of his action as frivolous by failing to brief any such
challenge. In re Municipal Bond Reporting Antitrust Litigation,
672 F.2d 436, 439 n.6 (5th Cir. 1982). Galer’s appeal is
dismissed as frivolous. 5TH CIR. R. 42.2.
Galer previously has had one action dismissed by the
district court as frivolous. Galer v. Texas, No. H-99-CV-1448
(S.D. Tex. Mar. 23, 2000). He has had one action dismissed by
the district court for failure to state a claim; his appeal from
that dismissal was dismissed as frivolous. Galer v. Johnson, No.
00-50021 (5th Cir. Dec. 13, 2000)(unpublished). He has had
another appeal dismissed as frivolous by this court. Galer v.
Johnson, No. 00-50904 (5th Cir. Dec. 13, 2000)(unpublished).
Galer thus already has four strikes for purposes of 28 U.S.C.
§ 1915(g), which limits a litigant’s ability to proceed IFP in
civil actions and appeals in federal courts following attainment
of three-strike status. The dismissal of Galer’s action as
frivolous in the instant case and the dismissal of Galer’s appeal
count as two more strikes, bringing Galer’s total to six.
No. 00-21026
-3-
Galer achieved three-strike status on December 13, 2000.
Galer is not precluded from proceeding IFP under 28 U.S.C. §
1915(g) in the current case because he filed his notice of
appeal, the district court issued the bad-faith certification,
and Galer mailed his IFP motion before he achieved three-strike
status. Galer is admonished that he achieved three-strike status
on December 13, 2000, and that he may not proceed IFP in any
civil action or appeal brought after December 13, 2000, unless he
“is under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g).
IFP MOTION DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL
DISMISSED, 5TH CIR. R. 42.2; SANCTIONS NOTIFICATION ISSUED.