Stewart v. Cockrell

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 01-11464
                          Conference Calendar



JOSEPH H. STEWART, III,

                                           Plaintiff-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; FRANK HOKE,
Program Administrator; NFN STEPHENS,
Senior Warden; LORI WILLS, Assistant Warden,
JOHN DOE #1, Step 2 Signature Authority,

                                           Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 5:01-CV-279-C
                      --------------------
                          June 18, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Joseph H. Stewart, III, Texas prisoner # 602302, appeals the

denial of his motion for a preliminary injunction filed in

connection with his 42 U.S.C. § 1983 civil rights lawsuit

alleging a denial of access to the courts.      He also seeks leave

to proceed in forma pauperis (“IFP”) on appeal.      Because he is

     *
        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that this opinion should not be published and is not precedent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. 01-11464
                               -2-

already being permitted to proceed IFP on appeal, his motion is

DENIED as moot.

     However, as Stewart apparently concedes, at the time he

filed his notice of appeal, Stewart had acquired at least three

strikes for purposes of 28 U.S.C. § 1915(g), meaning that he is

barred from proceeding IFP in the present appeal unless he is

“under imminent danger of serious physical injury.”   See 28

U.S.C. § 1915(g); see also Stewart v. State, No. 01-10772 (5th

Cir. Oct. 17, 2001)(unpublished)(and cases cited therein).

Therefore, his leave to proceed IFP on appeal, which the district

court granted by order dated November 29, 2001, is DECERTIFIED.

Stewart’s appeal is DISMISSED.   He may seek to reinstate his

appeal by paying the full appellate filing fee of $105 to the

clerk of the district court within 15 days of the date of this

opinion.

     IFP DECERTIFIED; APPEAL DISMISSED; MOTION DENIED.