United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-60453
Summary Calendar
GARY LEE,
Plaintiff-Appellant,
versus
B. BROWN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:04-CV-40-P-D
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gary Lee, Mississippi prisoner # 39820, seeks leave to
proceed in forma pauperis (“IFP”) to appeal the dismissal of his
42 U.S.C. § 1983 complaint for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). The district court denied IFP, certifying
that the appeal was not taken in good faith. By moving for leave
to proceed IFP, Lee is challenging the district court’s
*
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this opinion should not be published and is not precedent except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. 04-60453
-2-
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); FED. R. APP. P. 24(a)(5).
Lee argues that the district court erred in dismissing his
challenge to the disciplinary proceeding and failed to address
his argument that the defendants interfered with his right of
access to the courts by refusing to allow him to copy his habeas
petition, placing him in confinement for a disciplinary violation
for 20 days without legal assistance, and thereby prevented him
from filing his habeas petition. He also argues that the
district court erred in dismissing his complaint without giving
him an opportunity an opportunity to amend it.
Lee has not demonstrated any nonfrivolous ground for appeal.
Lee’s challenge to the disciplinary proceeding lacked merit as he
was provided due process in the disciplinary proceeding, and his
allegations did not demonstrate that the defendants had violated
his constitutional rights. Lee has not shown that the district
court erred in determining that Lee raised his claim that he was
denied access to the courts for the first time in a motion for an
emergency order and that Lee was required to raise this new claim
in a separate civil action after he had exhausted his
administrative remedies.
Based on the foregoing, Lee has failed to show that his
appeal involves “‘legal points arguable on their merits (and
therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). His motion for IFP is therefore DENIED and his
No. 04-60453
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appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 &
n.24. Lee’s motion for appointment of counsel on appeal is also
DENIED.
The district court’s dismissal of Lee’s complaint for
failure to state a claim, and the dismissal of his appeal as
frivolous by this court, each count as “strikes” under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Lee is be cautioned 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; MOTIONS DENIED; SANCTION WARNING ISSUED.