Cleveland Ferguson v. Burl Cain, Warden, et al

Filing 920100401

Case: 09-30988

Document: 00511068248

Page: 1

Date Filed: 04/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-30988 Summary Calendar April 1, 2010 Lyle W. Cayce Clerk

CLEVELAND FERGUSON, Plaintiff-Appellant v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; TRISH FOSTER, Legal Programs Director, Defendants-Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:08-CV-537

Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Cleveland Ferguson, Louisiana prisoner # 193321, moves this court to proceed in forma pauperis (IFP) in this appeal from the district court's dismissal of his 42 U.S.C. § 1983 complaint. The district court dismissed Ferguson's complaint based on a finding that the defendants were entitled to qualified immunity and Ferguson failed to state a claim for relief. The district court also denied Ferguson's request to proceed IFP on appeal, certifying that the appeal

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

*

Case: 09-30988

Document: 00511068248 Page: 2 No. 09-30988

Date Filed: 04/01/2010

was not taken in good faith. Ferguson's IFP motion is 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). Ferguson does not address the district court's reasons for dismissing his § 1983 complaint. Because he fails to identify any error in the district court's analysis, any argument is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Ferguson has not shown that he will present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP is denied and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2. The dismissal of this appeal as frivolous counts as one strike under 28 U.S.C. § 1915(g). Ferguson is cautioned that if he accumulates three strikes under § 1915(g), 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 MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

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