United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-50394
Conference Calendar
ANDREW D. MCGREW, JR.,
Plaintiff-Appellant,
versus
MONAHANS MUNICIPAL COURT; CITY OF MONAHANS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:05-CV-54
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Andrew D. McGrew, Jr., Texas prisoner # 1317843, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal.
The district court denied McGrew’s IFP motion and certified that
the appeal was not taken in good faith. By moving for IFP,
McGrew is challenging the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
McGrew asserts that he was denied his due process rights by
the Monahans Municipal Court because he was prosecuted for
driving with a suspended license. He also contends that the City
*
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this opinion should not be published and is not precedent except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. 06-50394
-2-
of Monahans should be held liable for the actions of its court.
McGrew has not shown that the district court’s determination that
his appeal would be frivolous was incorrect. He has failed to
brief a challenge to the basis for the district court’s denial of
IFP, and any such argument is not preserved. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The instant
appeal is without arguable merit and is thus frivolous.
Accordingly, McGrew’s request for IFP status is denied, and his
appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-220
(5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of McGrew’s 42 U.S.C. § 1983 suit by the
district court pursuant to 28 U.S.C. § 1915(e)(2)(B) and our
dismissal of this appeal as frivolous both count as strikes under
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). McGrew has one prior strike. McGrew v. Orona,
No. 7:04-CV-156-RAJ (W.D. Tex. Dec. 9, 2004). Because McGrew has
accumulated at least three strikes under § 1915(g), he is 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 § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.