Nicholson v. McLennan County Commissioner's Court

United States Court of Appeals
Fifth Circuit

FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-50327
Conference Calendar

STEPHEN E. NICHOLSON,

Plaintiff-Appellant,

versus

LARRY LYNCH, Sheriff; JOHNNY MYNAR; JIMMY STONE;
ED HARRINGTON; UNNAMED PARA-LEGAL SERVICE,

Defendants-Appellees.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CV-120
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Stephen E. Nicholson, Texas prisoner # 1126089, seeks leave

to proceed in forma pauperis (IFP) in this appeal from the

district court’s dismissal of his 42 U.S.C. § 1983 action for

failure to state a claim on which relief could be granted. The

district court denied Nicholson’s motion for leave to proceed IFP

on appeal and certified that the appeal was not taken in good

faith. Nicholson challenges the district court’s certification

decision pursuant to Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

*
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this opinion should not be published and is not precedent except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. 04-50327
-2-

1997). Nicholson has not addressed the merits of the district

court’s certification decision. Accordingly, his request for IFP

status is DENIED, and his appeal is DISMISSED as frivolous. See

Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

The district court’s dismissal of his complaint and this

court’s dismissal of his appeal count as two strikes under 28

U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87

(5th Cir. 1996). Nicholson has had at least one other civil

rights complaint dismissed for failure to state a claim, and we

dismissed as frivolous his appeal of that dismissal. Nicholson

v. McLennan County Comm’rs Court, No. 04-50356, slip op. (5th

Cir. August 17, 2004) (unpublished). Nicholson has accumulated

four strikes for purposes of 28 U.S.C. § 1915(g). Adepegba,

103 F.3d at 387. Nicholson is therefore BARRED from proceeding

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; 28 U.S.C. § 1915(g) SANCTIONS

IMPOSED.