IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50101
Conference Calendar
JOHN EARL SIMMONS,
Plaintiff-Appellant,
versus
DAVID MOYA; ET AL.,
Defendants,
HAROLD A. REICHEL; TIMOTHY W. ROPPLE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-117
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
John Earl Simmons, Texas prisoner # 528686, has filed a
motion to proceed in forma pauperis (IFP) on appeal following the
district court’s dismissal of his claims as frivolous and for
failure to state a claim and the district court’s denial of IFP
upon certifying that Simmons’ appeal was not being taken in good
*
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that this opinion should not be published and is not precedent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. 02-50101
- 2 -
faith. Simmons states that he is financially unable to pay the
filing fees. However, he does not challenge the district court’s
reasons for denying him IFP status for his appeal; nor does he
demonstrate that his appeal would not be frivolous. He has not
made the requisite showing for IFP status for his appeal. Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); Jackson v. Dallas
Police Dep't, 811 F.2d 260, 261 (5th Cir. 1986).
His motion to proceed IFP on appeal is DENIED. His appeal
is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 n.24; FED.
R. APP. P. 42.2. Simmons is advised that the district court’s
dismissal of his case and this court’s dismissal of his appeal
constitute two strikes. See 28 U.S.C. § 1915(g). If he
accumulates three strikes under 28 U.S.C. § 1915(g), he may not
proceed IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury.