Filed: Apr. 02, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 2, 2007 Charles R. Fulbruge III Clerk No. 05-50801 Summary Calendar DONALD MUJOHADIN JOHNSON, Plaintiff-Appellant, versus PHYLLIS H. SMITH, Mailroom Supervisor, Lynaugh Unit; U.S. POSTMASTER–FORT STOCKTON, TEXAS; U.S. POSTMASTER–FORT WORTH, TEXAS; CLAUDIA REEVES, Mailroom Supervisor, Estes Unit; J. GLENN, Assistant Mailroom Supervisor, Defendants-Appellees. - Appeal from the U
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 2, 2007 Charles R. Fulbruge III Clerk No. 05-50801 Summary Calendar DONALD MUJOHADIN JOHNSON, Plaintiff-Appellant, versus PHYLLIS H. SMITH, Mailroom Supervisor, Lynaugh Unit; U.S. POSTMASTER–FORT STOCKTON, TEXAS; U.S. POSTMASTER–FORT WORTH, TEXAS; CLAUDIA REEVES, Mailroom Supervisor, Estes Unit; J. GLENN, Assistant Mailroom Supervisor, Defendants-Appellees. - Appeal from the Un..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 2, 2007
Charles R. Fulbruge III
Clerk
No. 05-50801
Summary Calendar
DONALD MUJOHADIN JOHNSON,
Plaintiff-Appellant,
versus
PHYLLIS H. SMITH, Mailroom Supervisor, Lynaugh Unit; U.S.
POSTMASTER–FORT STOCKTON, TEXAS; U.S. POSTMASTER–FORT WORTH,
TEXAS; CLAUDIA REEVES, Mailroom Supervisor, Estes Unit; J. GLENN,
Assistant Mailroom Supervisor,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:03-CV-67
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Donald Mujohadin Johnson, Texas prisoner # 638554, has filed
an application for leave to proceed in forma pauperis (IFP) on
appeal following the district court’s dismissal of his 42 U.S.C.
§ 1983 civil rights complaint, wherein he alleged that prison
officials and United States postal employees mishandled his mail.
The district court denied Johnson leave to proceed IFP on appeal,
certifying that the appeal was not taken in good faith. By
*
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this opinion should not be published and is not precedent except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. 05-50801
-2-
moving for IFP here, Johnson is challenging the district court’s
certification. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir.
1997); FED. R. APP. P. 24(a).
Liberally construed, Johnson’s motion contends that
28 U.S.C. § 1915(a)(3)’s good faith requirement does not apply to
prisoners. This argument lacks merit. See
Baugh, 117 F.3d at
200. Liberally construed, Johnson’s motion also argues generally
that a claim dismissed for failure to state a claim on which
relief can be granted is not automatically frivolous under
§ 1915(a)(3) and (e). However, Johnson does not contend that the
district court in fact conflated those standards when denying IFP
in his case.
Johnson does not challenge the district court’s
certification that his appeal was not taken in good faith.
Therefore, Johnson’s motion fails to show error in the district
court’s certification decision and fails to show that he will
raise a nonfrivolous issue on appeal. Accordingly, Johnson’s
motion to proceed IFP on appeal is denied and his appeal is
dismissed as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d
383, 387-88 (5th Cir. 1996). Although the district court also
determined that its dismissal of several of Johnson’s claims for
failure to state a claim counted as a strike, we do not decide at
No. 05-50801
-3-
this time whether that dismissal in fact constitutes a second
strike. Johnson is cautioned that once he accumulates three
strikes, he may not proceed 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. See
§ 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.