IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10191 Conference Calendar

CLYDE NUBINE,

Plaintiff-Appellant,

versus

JANICE RALSTON SONS, Judge,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 7:99-CV-209-R -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Clyde Nubine, Texas prisoner # 398312, has filed a motion

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

the dismissal of his complaint as frivolous pursuant to

(e)(2)(B)(i). By moving for IFP status, Nubine is

challenging the district court’s certification that IFP status

should not be granted on appeal because his appeal presents no

nonfrivolous issues and is not taken in good faith. See Baugh v.

Taylor,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10191 -2-

Nubine argues that the district court erred in dismissing

his claim against Judge Sons as frivolous. He argues that Judge

Sons is liable in her individual capacity for failing to file

with the clerk of court a document that Nubine sent directly to

her. Because Judge Sons did not have an affirmative duty to file

the pleading that Nubine sent to her under Tex. Civ. Proc. R. 74

and because she did not act in the absence of all jurisdiction,

the district court did not err in holding that Judge Sons was

entitled to absolute immunity. See Krueger v. Reimer,

(5th Cir. 1995); Malina v. Gonzales,

(5th Cir. 1993).

Nubine also argues that the Prison Litigation Reform Act

(PLRA) is unconstitutional. Nubine has not shown that the

district court erred in denying his Fed. R. Civ. P. 59(e) motion

in which he raised this claim. Nubine has not cited any legal

authority to support his claim that the PLRA is unconstitutional

under the Separation of Powers Clause, the Privileges and

Immunities Clause, or the Due Process Clause.

Nubine has not shown that he will raise a nonfrivolous issue

on appeal. See Holmes v. Hardy,

(5th Cir.

1988); Howard v. King,

(5th Cir. 1983).

Nubine’s request for IFP status is DENIED, and his appeal is

DISMISSED as frivolous. See Baugh,

& n.24; 5TH

CIR. R. 42.2.

The district court’s dismissal of Nubine’s § 1983 action

counts as a “strike” for purposes of

(g), and the

dismissal of this appeal as frivolous also counts as a “strike” No. 00-10191 -3-

for purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). Nubine is warned that if

he accumulates a third “strike,” he may not 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

(g). Nubine is cautioned

to review any pending pleadings or appeals to ensure that they do

not raise any frivolous claims.

IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING

ISSUED.