IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20397 Conference Calendar

THOMAS C. SAWYER, JR.,

Plaintiff-Appellant,

versus

ALLAN B. POLUNSKY; EDWARD MCELEA; GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; SYLVIA NANCE,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:97-CV-0562 - - - - - - - - - -

August 24, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Thomas C. Sawyer, Jr., Texas prisoner

# 579557, seeks leave to proceed in forma pauperis (IFP),

following the district court’s certification that his appeal from

the dismissal of his civil-rights complaint for failure to comply

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20397 - 2 -

with court orders was taken in bad faith. Notwithstanding

Sawyer’s assertions to the contrary, the record indicates that he

failed to comply with court orders out of contumaciousness and

that the district court employed lesser sanctions before

dismissing the action. See Long v. Simmons,

(5th Cir. 1996).

Sawyer’s appeal is without arguable merit and is frivolous.

Howard v. King,

(5th Cir. 1983).

Accordingly, Sawyer’s IFP motion is DENIED and the appeal is

DISMISSED. 5TH CIR. R. 42.2. The dismissal of this appeal as

frivolous counts as a third strike for purposes of

(g). Therefore, Sawyer may no longer proceed IFP in any

civil action or appeal filed while he is in prison unless he is

under imminent danger of serious physical injury. See § 1915(g).

IFP DENIED; APPEAL DISMISSED; APPELLANT BARRED. See

(g).