Moorer v. US Pentry Pollock, et al

Filing 920090818

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-30736 Conference Calendar STEPHAN MOORER Plaintiff-Appellant v. UNITED STATES PENITENTIARY POLLOCK, Executive, Supervisory & Custodial Staff; FEDERAL CORRECTIONAL INSTITUTION OAKDALE; S HARTLINE; G MALDONADO; H LAPPIN; H WATTS; F MENNIFEE; J BELL; K EDENFIELD; CAPTAIN MARQUES; T GARROW; S I A TOWNSEND; S MORRISON; M MELTON; C JEFFERSON; C ZERR; D CRUZ Defendants-Appellees August 18, 2009 Charles R. Fulbruge III Clerk Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:08-CV-365 Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Stephan Moorer, federal prisoner # 03502-007, has moved for leave to proceed in forma pauperis (IFP) on appeal from the dismissal of his original Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), complaint as frivolous and his amended complaint for lack of proper venue. By moving for 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 08-30736 leave to proceed IFP, Moorer is challenging the district court's certification that the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Moorer fails to address the district court's finding that his original complaint was precluded by Sandin v. Conner, 515 U.S. 472 (1995), and that his amended complaint was filed in the wrong venue. Moorer has thus abandoned any challenge to the district court's dismissal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Moorer 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, Moorer'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, the appeal is dismissed. See 5 TH C IR. R. 42.2. The district court's dismissal of Moorer's original complaint as frivolous and our 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). Moorer 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). MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED. 2

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