Martin v. James v Allred Administrative Staff

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 11, 2007
No. 07-10309
Conference Calendar Charles R. Fulbruge III
Clerk
FABIAN THOMAS MARTIN
Plaintiff-Appellant
v.
JAMES V ALLRED ADMINISTRATIVE STAFF; WILLIAM DUCKSWORTH;
DOUGLAS L SHAW
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CV-33
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Fabian Thomas Martin, Texas prisoner # 595332, moves this court for
permission to appeal in forma pauperis (IFP) from the dismissal of a civil rights
complaint alleging that prison employees failed to protect him from an attack by
another inmate. The district court denied Martin’s IFP motion and certified that
the appeal was not taken in good faith. By moving for leave to proceed IFP,
Martin is challenging the district court’s certification. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10309
Martin’s appellate pleadings address only his financial status and do not
identify any error in the district court’s rejection of his claims as frivolous.
Therefore, Martin has not shown that the district court erred in determining
that his appeal would be frivolous. Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). The instant appeal is without arguable merit and is thus frivolous.
Accordingly, Martin’s motion to proceed IFP on appeal is denied and the appeal
is dismissed. See Howard v. King, 707 F.2d 215, 219-220 (5th Cir. 1983); 5TH
CIR. R. 42.2.
The district court’s dismissal of Martin’s complaint and this court’s
dismissal of his appeal count as two strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Martin also
accumulated a strike in Martin v. Good, No. 95-CV-669 (W.D. Tex. Nov. 16,
1995). As Martin has now accumulated at least three strikes, he is barred from
proceeding IFP pursuant to § 1915 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; 28 U.S.C. § 1915(g) BAR IMPOSED.
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