United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-60467
Conference Calendar
GERALD WAYNE MCCAIN,
Plaintiff-Appellant,
versus
JOHN BEARRY, Dr., Medical Director,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-49-MN
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Gerald Wayne McCain, Mississippi prisoner No. R8568,
proceeding pro se, moves for leave to proceed in forma pauperis
(IFP) in an appeal of the district court’s final judgment that
dismissed his 42 U.S.C. § 1983 complaint. The motion for IFP
challenges the district court’s certification that McCain’s
appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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. 04-60467
-2-
McCain’s disagreement with the conservative medical
treatment that he has received for a congenital condition does
not allege a constitutional violation. Norton v. Dimazana,
122 F.3d 286, 292 (5th Cir. 1997). Thus, McCain has not shown
that the district court erred in certifying that an appeal would
not be taken in good faith or that he will present a nonfrivolous
issue on appeal. 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.
The dismissal of this appeal and the district court’s
dismissal of McCain’s complaint for failure to state a claim
count as strikes under the Prison Litigation Reform Act.
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). McCain
is CAUTIONED that if he accumulates three strikes under
28 U.S.C. § 1915(g), he will not be able to 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. 28 U.S.C. § 1915(g).
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.