IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50675 Conference Calendar

ALFRED C. ANGELLE,

Plaintiff-Appellant,

versus

LOUIS E. GIBSON, also known as Doctor Gibson,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CV-125 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Alfred C. Angelle, Texas prisoner No. 684294, seeks leave to

proceed in forma pauperis (IFP) following a certification

pursuant to

(a)(3) that his appeal is taken in

bad faith. We note initially that the district court relied in

part on evidence outside of the pleadings when dismissing

Angelle’s complaint as malicious pursuant to

(e)(2)(B)(i). The dismissal thus operated as a grant of

the defendant’s summary-judgment motion. Washington v. Allstate

Ins. Co.,

(5th Cir. 1990).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50675 -2-

The district court provided adequate reasons in support of

its determination that Angelle’s appeal is not taken in good

faith. Angelle has provided no argument challenging the district

court’s determinations as to the merits of his complaint.

Brinkmann v. Dallas County Deputy Sheriff Abner,

(5th Cir. 1987).

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

Howard v. King,

(5th Cir. 1983). The

dismissal of Angelle’s appeal counts as a “strike” for purposes

of

(g). Because the district court’s dismissal

for failure to state a claim acted as a grant of summary

judgment, the district court’s judgment does not count as a

“strike.” Angelle is cautioned that once he accumulates three

strikes, he will not be able to proceed IFP in any civil action

or appeal while he is imprisoned “unless [he] is under imminent

danger of serious physical injury.” § 1915(g).

IFP DENIED. APPEAL DISMISSED. SANCTION WARNING ISSUED.