United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-10550
Conference Calendar
DANIEL GAUDETTE,
Plaintiff-Appellant,
versus
K. J. WENDT; GORDON TRUEBLOOD; KAREN FERNANDERS;
SCOTT CROWE; JOSEPH CAPPS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-245
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Daniel Gaudette, federal prisoner # 04208-180, moves this
court for leave to proceed in forma pauperis (IFP) on appeal
following the district court’s dismissal of his pro se and IFP
complaint brought pursuant to Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). The district court dismissed the complaint
as frivolous under 28 U.S.C. § 1915(e)(2). We construe
Gaudette’s motion as a challenge to 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this opinion should not be published and is not precedent except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. 05-10550
-2-
determination that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Gaudette argues that his appeal should proceed because he
“made an honest mistake” by failing to provide all of his
evidence to the district court. Gaudette does not, however, give
any indication what evidence he failed to submit, nor does he
allege that he was precluded from presenting such evidence. He
argues only that because he was proceeding pro se, he thought
that the district court would give him “some leniency.”
Gaudette was allowed to develop his claims through his
responses to the magistrate judge’s questionnaire. See Eason v.
Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). Gaudette was provided
with ample opportunity to provide evidence, and the record shows
that he made use of that opportunity. His suggestion that the
district court failed to afford his pro se pleadings liberal
construction is without merit. See Haines v. Kerner, 404 U.S.
519, 520 (1972).
Gaudette has failed to establish that he seeks to present a
nonfrivolous issue for appeal. Accordingly, his motion for IFP
is denied, and the appeal dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The motion for
appointment of counsel is denied. We caution Gaudette that he
has accumulated two strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). If he
accumulates a total of three strikes, Gaudette may no longer
No. 05-10550
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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 § 1915(g);
Carson v. Johnson, 112 F.3d 818, 819 (5th Cir. 1997).
MOTION FOR IFP DENIED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.