U.S. Court of Appeals for the Fifth Circuit, 2008

Kelly v. City of Dallas

Kelly v. City of Dallas
U.S. Court of Appeals for the Fifth Circuit · Decided August 19, 2008 · Garza, Clement, Southwick
288 F. App'x 993

Kelly v. City of Dallas

Opinion

PER CURIAM: *

William Kelly, Jr. Texas prisoner # 559442, moves this court to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his 42 U.S.C. § 1983 complaint. The district court dismissed the complaint as barred by the applicable statute of limitations. The district court also denied Kelly’s request to proceed IFP on appeal, certifying that the appeal was not taken in good faith.

Kelly’s IFP motion is a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). However, Kelly does not address the district court’s reasons for dismissing his § 1983 complaint. Because he fails to identify any error in the district court’s analysis, any such argument is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Kelly has not shown that he will present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP is denied, and the appeal is *994 dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5th Cir. R. 42.2.

Both the district court’s dismissal of the complaint and this court’s dismissal of the appeal count as strikes under 28 U.S.C. § 1915(g). Kelly has one previous strike. See Kelly v. Dallas Co. Sheriffs and Medical Dep’t, No. 3:95-CV-0062-P (N.D.Tex. May 28, 1996). Because Kelly has accumulated three strikes, he is barred from proceeding 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.” § 1915(g).

IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

*

Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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