Tijerina v. Clements

Filing 920090820

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-11046 Summary Calendar August 20, 2009 Charles R. Fulbruge III Clerk

CARLOS TIJERINA, Plaintiff-Appellant v. DEON CLEMENTS, Individual and Official Capacity, Defendant-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:08-CV-107

Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Carlos Tijerina, Texas prisoner # 1349165, moves this court for authorization to proceed in forma pauperis (IFP) on appeal following the district court's dismissal of his 42 U.S.C. § 1983 suit as frivolous pursuant to 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. Tijerina's motion to proceed IFP on appeal is construed as a challenge to the district court's certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 08-11046

Tijerina argues that his rights were violated when Detective Deon Clements of the Lubbock County Sheriff's Office interviewed Tijerina and took statements from him. Tijerina also moves this court to consolidate this appeal with others that he has pending. Tijerina does not analyze, and has thus

abandoned, the issue whether the district court erred by determining that the instant suit was not timely filed and by dismissing it on that basis. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Tijerina has not demonstrated that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, his motion to proceed IFP is DENIED. See Baugh, 117 F.3d at 202. Tijerina's motion to consolidate is likewise DENIED. frivolous. See 5 TH C IR. R. 42.2. The district court's dismissal of Tijerina's suit as frivolous and the dismissal of this appeal as frivolous both count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Tijerina is WARNED that, if he accumulates three strikes pursuant to § 1915(g), 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). His appeal is DISMISSED as

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