Espinoza Rodriguez v. Jenkins , 71 F. App'x 390 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003
Charles R. Fulbruge III
Clerk
No. 03-50136
Conference Calendar
SAMMY ESPINOZA RODRIGUEZ,
Plaintiff-Appellant,
versus
LEPHER JENKINS; BILL CHEATHAM; SAMMY BUENTELLO;
GARY JOHNSON; WAYNE SCOTT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-559-EP
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Sammy Espinoza Rodriguez, Texas prisoner # 459516, has
filed a motion in this court to proceed in forma pauperis (IFP)
following the district court’s denial of his IFP motion and
certification that the appeal would not be taken in good faith.
Rodriguez presents conclusional arguments that the defendants
violated his constitutional rights and that his claims were not
time-barred. He has not shown that his appeal would have
arguable merit.
*
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that this opinion should not be published and is not precedent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.
No. 03-50136
-2-
Further, a review of the record reveals that an appeal would
be frivolous. His appeal is therefore DISMISSED AS FRIVOLOUS.
See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997).
The district court's dismissal of Rodriguez’s 42 U.S.C. § 1983action and the dismissal of this appeal both count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Rodriguez is warned that if he
accumulates a third strike, 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. See 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING
ISSUED.