Jones v. Kirkwood , 323 F. App'x 392 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2009
No. 08-60444
Conference Calendar Charles R. Fulbruge III
Clerk
DONALD MCARTHUR JONES
Plaintiff-Appellant
v.
JEAN KIRK W O OD ; R O N ALD K ING; CH RISTOPH ER B EPPS,
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:06-CV-109
Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
Donald McArthur Jones, former Mississippi prisoner # K3202, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal from the dismissal
of his 42 U.S.C. § 1983 complaint. By moving for IFP, Jones is challenging the
district court’s certification that his appeal was not taken in good faith. See
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60444
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
Jones’s good faith “is limited to whether the appeal involves ‘legal points
arguable on their merits (and therefore not frivolous).’” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (citation omitted).
Because Jones’s brief does not address the reasons for the district court’s
certification decision or the basis of the district court’s dismissal, it is the same
as if he had not appealed the judgment. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Jones has not
demonstrated that he will raise a nonfrivolous issue on appeal. See Howard, 707
F.2d at 219-20. Accordingly, Jones’s motion to proceed IFP is denied. See
Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, see Howard, 707
F.2d at 219-20, his appeal is dismissed. See 5 TH C IR. R. 42.2. Jones’s motion for
preparation of the transcript at government expense is denied. See 28 U.S.C.
§ 753(f); Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).
The dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Jones has one prior strike. See Jones v. Smith, 234 F. App’x 249, 250 (5th
Cir. 2007). We caution Jones 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.” § 1915(g).
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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