United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 9, 2003
Charles R. Fulbruge III
No. 02-51356 Clerk
Summary Calendar
RAMON ALBERTO GARCIA,
Plaintiff-Appellant,
versus
TIMOTHY KEITH; ERNESTO GUTIERREZ,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(SA-02-CV-311)
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Following the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint and denial of leave to proceed in forma pauperis
(IFP) on appeal, Plaintiff-Appellant Ramon Alberto Garcia, TDCJ-ID
# 792815, filed a notice of appeal in this court, which we have
construed as a motion to proceed IFP. Garcia is challenging the
district court’s certification that his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28
U.S.C. § 1915(c)(3); FED. R. APP. P. 24(a). The district court
*
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this opinion should not be published and is not precedent except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.
dismissed Garcia’s 42 U.S.C. § 1983 complaint as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
Garcia asserts that the district court mistakenly assumed that
the prison was on “lock-down” status or that the dining hall was
full, erred in finding his assertions of the defendants’
involvement to be “conclusory” and “unsupported,” erred in
addressing his claim of “severe” living conditions, and erred in
finding his claim of denial of access to the law library unlikely.
He also asserts that the district court was biased.
Based upon our review of the record, we conclude that Garcia
has not shown a non-frivolous issue for appeal. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). We uphold the district
court’s order certifying that the appeal was not taken in good
faith. We also conclude that the instant appeal is without
arguable merit and is frivolous. Garcia’s motion to proceed IFP is
DENIED, and his appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117
F.3d at 202 and n.24; 5TH CIR. R. 42.2.
The dismissal of Garcia’s complaint in the district court and
the dismissal of this appeal as frivolous each count as a “strike”
for the purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). We caution Garcia that once he
accumulates three strikes, he may not proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
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