Hall v. MS Band of Choctaw, et al

Filing 920091020

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-61120 Conference Calendar October 20, 2009 Charles R. Fulbruge III Clerk

JODY HALL, Plaintiff-Appellant v. MISSISSIPPI BAND OF CHOCTAW INDIANS JUSTICE COMPLEX; TERRY PALMER, Jailer or Sheriff, Defendants-Appellees

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:08-CV-152

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Jody Hall, Mississippi prisoner # L3845, moves for permission to proceed in forma pauperis (IFP) to appeal the dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim. The district court denied Hall leave to proceed IFP on appeal, certifying that the appeal was not taken in good faith for the reasons set forth in the magistrate judge's report and recommendation. Hall has failed to adequately brief the issues raised in the district court's certification decision.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 08-61120 He therefore has not shown that the district court's determination that his appeal would be frivolous was incorrect. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Consequently, his request for IFP is denied, and his appeal is dismissed as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH C IR. R. 42.2. The district court's dismissal and the dismissal of this appeal count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Hall is cautioned that, if he accumulates three strikes, he will not be able to 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). IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

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