Johnson v. Thomas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20697
Conference Calendar
ARTHUR E. JOHNSON,
Plaintiff-Appellant,
versus
TOMMY THOMAS, Sheriff, Harris County;
BILLY RAY KELLEY; DEPUTIES &
JAILERS, SEVERAL; LAWARANCE HAYES;
ROBERT M. FENLON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-129
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Arthur E. Johnson, Texas prisoner #1047508, has filed an
appeal following the district court’s dismissal of his pro se 42
U.S.C. § 1983 complaint for failure to prosecute, the denial of
his FED. R. CIV. P. 59(e) motion, and the denial of his motion to
proceed in forma pauperis (IFP) in the district court.
Johnson’s notice of appeal is timely only as to the district
court’s denial of the motion to proceed IFP in the district
*
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that this opinion should not be published and is not precedent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. 01-20697
-2-
court. See FED. R. APP. P. 4(a)(1)(A); United States v.
Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). Johnson does not
argue that the district court erred in denying his motion to
proceed IFP, and he has therefore waived the only issue on
appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
This appeal is frivolous, and it is DISMISSED. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of this appeal counts as one strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Johnson is warned that if he accumulates three
strikes he will be barred from proceeding IFP in any civil action
or appeal brought in a United States court unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g). Johnson’s motion for appointment of counsel is
DENIED.
APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED;
MOTION FOR APPOINTMENT OF COUNSEL DENIED.