United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-40897
Conference Calendar
JOHN C. SPURLOCK,
Plaintiff-Appellant,
versus
WAYNE SCOTT, sued in their individual capacities and
official capacities; ARTHUR H. VELASQUEZ, sued in their
individual capacities and official capacities; BRENDA
CHANEY, sued in their individual capacities and official
capacities; AMADO IGLESIAS, sued in their individual
capacities and official capacities; JAMES C. SCHROEDTER,
sued in their individual capacities and official capacities;
FLOYD LANGE, sued in their individual capacities and
official capacities; RANDY E. SMIDT, sued in their
individual capacities and official capacities; MICHAEL K.
LOTT, sued in their individual capacities and official
capacities; PATRICK A. PATEK, sued in their individual
capacities and official capacities; GLEN A YOUNG, sued in
their individual capacities and official capacities; FRANK
RODRIQUEZ, sued in their individual capacities and official
capacities; DEBORAH G. VILLARREAL, sued in their individual
capacities and official capacities,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-00-CV-67
-------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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. 03-40897
-2-
John Spurlock, Texas prisoner # 741571, moves for leave to
proceed in forma pauperis (“IFP”) following the district court's
dismissal of his 42 U.S.C. § 1983 civil rights complaint as
frivolous pursuant to 28 U.S.C. § 1915(e). Spurlock's motion is
a challenge to 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).
Spurlock argues that the district court lacked jurisdiction
to consider various orders and should have granted a stay pending
a ruling in the appellate court on his writ of mandamus, that the
district court denied his request for IFP in retaliation for the
mandamus action, and that the district court should have recused
itself from considering Spurlock’s IFP motion.
Spurlock has filed a motion for leave to supplement his
brief. His motion is GRANTED. Spurlock has not shown that
the district court erred in certifying that the appeal is not
taken in good faith. He has not shown that he will present a
nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983). Accordingly, the motion for leave to
proceed IFP is DENIED and the appeal is DISMISSED as frivolous.
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
Spurlock is CAUTIONED that the dismissal of this appeal and
the district court’s dismissal count as two “strikes” for
purposes of 28 U.S.C. § 1915(g) and that if he accumulates three
strikes, he will not be able to proceed IFP in any civil action
No. 03-40897
-3-
or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996).
MOTION TO SUPPLEMENT GRANTED; IFP MOTION DENIED; APPEAL
DISMISSED; SANCTIONS WARNING ISSUED.