Burrell Johnson, Jr. v. Rosie Jackson


UNPUBLISHED OPINION ORDER FILED. [10-10664 Dismissed as Frivolous] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 04/14/2011; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Burrell Johnson, Jr. [6654120-2] [10-10664]

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Burrell Johnson, Jr. v. Rosie10-10664 Case: Jackson Document: 00511423014 Page: 1 Date Filed: 03/24/2011 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-10664 Summary Calendar March 24, 2011 Lyle W. Cayce Clerk BURRELL JOHNSON, JR., Plaintiff-Appellant v. ROSIE M. JACKSON, Defendant-Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CV-790 Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges. PER CURIAM:* Burrell Johnson, Jr., Texas prisoner # 243195, 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 for failure to state a claim upon which relief may be granted. The district court denied his request to proceed IFP on appeal, certifying that the appeal was not taken in good faith. Johnson's IFP motion in this court 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. 1992). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. * Dockets.Justia.com Case: 10-10664 Document: 00511423014 Page: 2 Date Filed: 03/24/2011 No. 10-10664 As Johnson has not adequately addressed the reasons for the district court's certification decision, it is the same as if he had not challenged that decision. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Baugh, 117 F.3d at 202. Because Johnson has not shown that he will present any nonfrivolous issue on appeal, his motion for leave to proceed IFP is denied and this appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5 TH C IR. R. 42.2. The district court's dismissal of Johnson's 1983 complaint for failure to state a claim 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). Johnson 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. 2

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