IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50373 Conference Calendar

JIMMIE BATISTE,

Plaintiff-Appellant,

versus

DAVID MOYA; ET AL.,

Defendants,

RUSSELL WEST; RAYMOND NOBLE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-98-CV-86 -------------------- August 22, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.

PER CURIAM:*

Jimmie Batiste, Texas prisoner # 531735, has filed a motion

for leave to proceed in forma pauperis (IFP) on appeal, following

the district court’s denial of relief on his civil rights action

after a nonjury trial. By moving for IFP status, Batiste is

challenging the district court’s certification that IFP status

should not be granted on appeal because his appeal is frivolous

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50373 -2-

and is not taken in good faith. See Baugh v. Taylor,

(5th Cir. 1997).

Batiste argues that the district court’s refusal to grant

him IFP status on appeal violates the Due Process Clause and the

Equal Protection Clause. This court has already ruled that the

Prison Litigation Reform Act (PLRA) does not violate either one.

See Carson v. Johnson,

(5th Cir. 1997).

Batiste has not shown that he will raise a nonfrivolous issue on

appeal. Accordingly, we uphold the district court’s order

certifying that the appeal is frivolous. Batiste’s request for

IFP status is DENIED, and his appeal is DISMISSED as frivolous.

See Baugh,

& n.24; 5TH CIR. R. 42.2

The dismissal of this appeal as frivolous counts as a

“strike” for purposes of § 1915(g). See Adepegba v. Hammons,

(5th Cir. 1996). Batiste is warned that if he

accumulates three “strikes” pursuant to § 1915(g), he may not be

able 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 § 1915(g).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING

ISSUED.