United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-10300
Conference Calendar
ANDY CASTELLANO, JR.,
Plaintiff-Appellant,
versus
WARDEN TREON; NFN WOLFE, Sergeant;
NFN VILLALOBOS, Sergeant; NFN STEGAL, Sergeant;
THOMAS KIRBY, Sergeant; NFN STREIT, Sergeant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:03-CV-00013
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Andy Castellano, Jr., Texas prisoner #586286, by moving for
in forma pauperis (IFP) status on appeal, is challenging the
district court’s determination that IFP should not be granted on
appeal because his appeal from the district court’s dismissal as
frivolous of his 42 U.S.C. § 1983 complaint was not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
In his complaint, Castellano alleged that the defendants were
*
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that this opinion should not be published and is not precedent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. 03-10300
-2-
deliberately indifferent to his future safety when they
effectively labeled him a snitch and failed to protect him
against future harm by continually assigning him to units where
it was known that he was a snitch.
The district court did not err in dismissing Castellano’s
complaint as frivolous. Castellano’s failure-to-protect claim
fails because he concedes that he suffered no actual physical
injury resulting from the prison officials’ purported failure to
protect. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.
1999). Castellano’s transfer to a different prison unit also
rendered moot his claim for injunctive relief. See Cooper v.
Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir.
1991).
Castellano’s appeal from the dismissal of his complaint
lacks arguable merit, and the district court did not err in
finding that the instant appeal was not taken in good faith. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983)(lack of
nonfrivolous issue on appeal precludes finding of “good faith”
for purposes of 28 U.S.C. § 1915 and FED. R. APP. P. 24).
Accordingly, Castellano’s motion for leave to proceed IFP on
appeal is DENIED, and his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The dismissal of
Castellano’s appeal as frivolous counts as a “strike” for the
purposes of 28 U.S.C. § 1915(g), as does the district court’s
dismissal as frivolous of his 42 U.S.C. § 1983 complaint. See
No. 03-10300
-3-
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We
caution Castellano 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).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.