Johnson v. Thomas

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20697 Conference Calendar

ARTHUR E. JOHNSON,

Plaintiff-Appellant,

versus

TOMMY THOMAS, Sheriff, Harris County; BILLY RAY KELLEY; DEPUTIES & JAILERS, SEVERAL; LAWARANCE HAYES; ROBERT M. FENLON,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-129 -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Arthur E. Johnson, Texas prisoner #1047508, has filed an

appeal following the district court’s dismissal of his pro se 42

U.S.C. § 1983 complaint for failure to prosecute, the denial of

his FED. R. CIV. P. 59(e) motion, and the denial of his motion to

proceed in forma pauperis (IFP) in the district court.

Johnson’s notice of appeal is timely only as to the district

court’s denial of the motion to proceed IFP in the district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20697 -2-

court. See FED. R. APP. P. 4(a)(1)(A); United States v.

Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). Johnson does not

argue that the district court erred in denying his motion to

proceed IFP, and he has therefore waived the only issue on

appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

This appeal is frivolous, and it is DISMISSED. See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

The dismissal of this appeal counts as one strike for purposes of

28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387

(5th Cir. 1996). Johnson is warned that if he accumulates three

strikes he will be barred from proceeding IFP in any civil action

or appeal brought in a United States court unless he is under

imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g). Johnson’s motion for appointment of counsel is

DENIED.

APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED;

MOTION FOR APPOINTMENT OF COUNSEL DENIED.