Case: 09-10796     Document: 00511093852          Page: 1    Date Filed: 04/28/2010




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

                                                  FILED
                                                                            April 28, 2010
                                     No. 09-10796
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TRACEY D. GARRETT,

                                                   Plaintiff-Appellant

v.

CHUCK NORRIS, (Carlos Ray Norris); AARON NORRIS; BOB GORKIN;
MORRIS BROTHERS; CLERANCE GILYARD; ET AL,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CV-415


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Tracey Demark Garrett, federal prisoner # 31079-077,
seeks leave to appeal in forma pauperis (IFP) after the district court denied his
IFP motion and certified that his appeal was not taken in good faith. Our
inquiry into whether the appeal is taken in good faith “is limited to whether the
appeal involves legal points arguable on their merits (and therefore not
frivolous).”    Howard v. King, 

, 220 (5th Cir. 1983) (internal


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10796    Document: 00511093852 Page: 2         Date Filed: 04/28/2010
                                 No. 09-10796

quotation marks and citations omitted). Accordingly, Garrett’s IFP motion
should have been “directed solely to the trial court’s reasons for the certification
decision.” Baugh v. Taylor, 

, 202 (5th Cir. 1997). Instead, Garrett
asserts only that he is indigent. He fails to contend or show that he could
present any nonfrivolous on appeal. The record reflects that Garret’s action was
untimely, duplicative, and wholly frivolous. See See Wilson v. Lynaugh, 

, 850 (5th Cir. 1989). His IFP motion is denied, and his appeal is dismissed
as frivolous. See 

; 5 TH C IR. R. 42.2.
      The dismissal of this appeal and the district court’s dismissal as frivolous
count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,

, 387-88 (5th Cir. 1996). Garrett previously incurred two strikes,
and we previously warned him that he would be barred from proceeding IFP if
he made additional frivolous filings. See Garrett v. Norris, No. 02-10440 (5th
Cir. Dec. 9, 2003) (unpublished decision, dismissing appeal as frivolous and
issuing sanction warning). Accordingly, Garrett is now barred from proceeding
in forma pauperis 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 § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.




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