Faye vs. Melton (5th Cir. 2005)

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

June 21, 2005

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 04-60775

Conference Calendar

RAYMOND FAYE,

Plaintiff-Appellant,

versus

JIMMY MELTON, Correctional Supervisor, in his individual

capacity; HELEN DAVIS, Correctional Supervisor, in her

individual capacity; JIMMY GANT, Correctional Supervisor,

in his individual capacity; FRED SMITH, Correctional

Supervisor, in his individual capacity; CHARLES ALLEN,

Correctional Supervisor, in his individual capacity; JIM

HARMON, Maintenance Director, in his individual capacity;

CHRISTOPHER EPPS, Commissioner, in his individual capacity;

E. L. SPARKMAN, Deputy Commissioner of Corrections, in his

individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:03-CV-240-PA

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:* Raymond Faye, a Mississippi prisoner (# 63653), has filed an application to proceed in forma pauperis ("IFP") on appeal following the district court's dismissal of his 42 U.S.C. § 1983 complaint, without prejudice, for failure to exhaust administrative remedies. Faye is effectively challenging the district court's certification that he should not be granted IFP status because his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).

By failing to direct his motion solely to the district court's reasons for the certification decision, Faye has effectively abandoned the only issue that is properly before this court. See Baugh, 117 F.3d at 202; Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, Faye's request for IFP status is DENIED, and his appeal is DISMISSED as frivolous.

See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

The dismissal of this appeal as frivolous counts as a strike for purposes of the three-strikes provision, 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Faye is cautioned that if he accumulates three strikes, he will not be permitted 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 28 U.S.C. § 1915(g).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

* 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.