IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50686
Conference Calendar
JESSE ROLAND FLORES,
Plaintiff-Appellant,
versus
BRYAN CROUCH; Atascosa County Jail Administrator;
TOMMY WILLIAMS, Sheriff,
Atascosa County; ATASCOSA COUNTY JAIL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CV-316
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June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jesse Flores, Texas prisoner #749949, challenges the
district court’s certification that his appeal of the denial of
his FED. R. CIV. P. 60(b) motion is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry
into Flores’s good faith “is limited to whether the appeal
involves ‘legal points arguable on their merits (and therefore
not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (citation omitted).
*
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that this opinion should not be published and is not precedent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. 01-50686
-2-
Flores contends that he was denied due process, he was
subjected to cruel and unusual punishment, and he was prejudiced
by the defendants’ motion for summary judgment.
Flores cannot establish a due process violation as a result
of his confinement to conditions comparable to those in
administrative segregation. Sandin v. Conner, 515 U.S. 472,
485-86 (1995). Flores does not reiterate in this court his
specific claims that the defendants subjected him to cruel and
unusual punishment and denied him access to the court; thus, he
has abandoned these issues. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Flores has not
shown the deprivation of a right secured by the Constitution and
laws of the United States on his claim that the defendants filed
an untimely motion for summary judgment. Manax v. McNamara, 842
F.2d 808, 812 (5th Cir. 1988). The district court’s denial of
Flores’s FED. R. CIV. P. 60(b) motion was not an abuse of
discretion. Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. 1981).
Flores’s appeal does not raise any legal point arguable on
its merits. See Howard, 707 F.2d at 220. Accordingly, the
motion to proceed IFP is DENIED and the appeal is DISMISSED as
frivolous pursuant to 5TH CIR. R. 42.2. See Baugh, 117 F.3d at
202 n.24. The dismissal of this appeal as frivolous counts as a
“strike” under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). Flores is WARNED that if he
accumulates three strikes pursuant to 28 U.S.C. § 1915(g), he may
not proceed IFP in any civil action or appeal filed while he is
No. 01-50686
-3-
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. Id.
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.