Case: 13-40237       Document: 00512405849         Page: 1     Date Filed: 10/14/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 14, 2013
                                       No. 13-40237
                                                                           Lyle W. Cayce
                                                                                Clerk
ELLOYD JOHNSON,

                                                  Plaintiff-Appellant

v.

RICK THALER,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:12-CV-201


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Elloyd Johnson, Texas prisoner # 840854, seeks leave to proceed in forma
pauperis (IFP) in his appeal of the district court’s dismissal of his 42 U.S.C.
§ 1983 action.      The district court dismissed the complaint with prejudice
pursuant to 28 U.S.C. § 1915A(b)(1) because it was untimely. By moving for
leave to proceed IFP, Johnson is challenging the district court’s certification that
his appeal is not taken in good faith. See Baugh v. Taylor, 

, 202
(5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-40237    Document: 00512405849      Page: 2    Date Filed: 10/14/2013

                                  No. 13-40237

      Johnson’s contention that the district court should have transferred his
pleading to the Western District of Texas for inclusion in a closed case is
frivolous. He has not shown that the district court erred by dismissing his
complaint as barred by the statute of limitations. See Moore v. McDonald, 

, 620 (5th Cir. 1994).
      The district court’s dismissal of the instant suit and this court’s dismissal
of the appeal as frivolous each count as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 

, 387-88 (5th Cir. 1996). Johnson has at
least one other strike. See Johnson v. Grounds, No. 12-50213 (5th Cir. Nov. 26,
2012). As he now has accumulated three strikes under § 1915(g), Johnson is
advised that he is no longer allowed to proceed IFP in any civil action or appeal
filed while he is detained or incarcerated in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
      IFP DENIED; APPEAL DISMISSED; § 1915(g) SANCTION BAR
IMPOSED.




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