United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-11429
Conference Calendar
CHARLES CLAY WARNER, JR.,
Plaintiff-Appellant,
versus
WILLIAM E. GONZALEZ; ROBERT R. TREON, Warden; HERMAN WESTON;
JAMES D. MOONEYHAM, Warden; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:03-CV-174
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Charles Clay Warner, Jr., Texas state prisoner # 502362, has
filed an application to proceed in forma pauperis (“IFP”) on
appeal following the magistrate judge’s order granting the
defendants’ motion for summary judgment and dismissing Warner’s
42 U.S.C. § 1983 complaint. Warner is effectively challenging
the magistrate judge’s certification that he should not be
granted IFP status because his appeal was not taken in good
*
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this opinion should not be published and is not precedent except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. 04-11429
-2-
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).
However, Warner argues that the magistrate judge’s denial of
his request to proceed IFP on appeal was improper because the
magistrate judge focused on the merits of his claims rather than
his indigency. Warner has failed to show that the magistrate
judge erred in determining that his appeal was not taken in good
faith because Warner’s underlying claims were frivolous. Thus,
Warner has failed to demonstrate that he is entitled to proceed
IFP on appeal. See Baugh, 117 F.3d at 201-02. Accordingly,
Warner’s 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 dismissal of this appeal as frivolous counts as a strike
for purposes of the three-strikes provision, 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Warner is cautioned that if he accumulates three strikes, he will
not be permitted 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. See
28 U.S.C. § 1915(g).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.