Case: 11-50205     Document: 00511622568         Page: 1     Date Filed: 10/04/2011




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

                                                                            FILED
                                                                          October 4, 2011

                                     No. 11-50205                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RALPH B. SMITH,

                                                  Plaintiff-Appellant
v.

NEITA HULLUM; JULIE THALER; DIRECTORS REVIEW COMMITTEE;
STEPHANIE HIDRAGO; KAY SHEELEY,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:09-CV-3


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Ralph B. Smith, Texas prisoner # 855314, seeks leave to proceed in forma
pauperis (IFP) on appeal of the district court’s dismissal in part and grant of
summary judgment to the defendants in part of his 42 U.S.C. § 1983 action. By
moving for leave to proceed IFP, Smith is challenging the district court’s
certification that his appeal is not taken in good faith because it is frivolous. See


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50205      Document: 00511622568   Page: 2    Date Filed: 10/04/2011



                                  No. 11-50205
Baugh v. Taylor, 

, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.
R. APP. P. 24(a)(5).
      Smith argues that the district court erred by not granting him a default
judgment because the defendants did not file a timely answer. However, a
district judge has discretion to determine that a default judgment “should not
be granted on the claim, without more, that the defendant had failed to meet a
procedural time requirement.” Lacy v. Sitel Corp., 

, 292 (5th Cir.
2000) (internal quotation marks and citation omitted). Since Smith has failed to
make the necessary showing, the district court did not abuse its discretion.
Because Smith’s appeal is frivolous, the IFP motion is denied, and the appeal is
dismissed. See 

; 5TH CIR. R. 42.2. Smith’s motion for
appointment of counsel is also denied. See Cooper v. Sheriff, Lubbock County,
Tex., 

, 1084 (5th Cir. 1991).
      The dismissal of this appeal as frivolous counts as a strike under § 1915(g).
See Adepegba v. Hammons, 

, 387–88 (5th Cir. 1996). As Smith has
now accumulated three strikes, he is barred from proceeding in forma pauperis
pursuant to § 1915 while he is incarcerated or detained in any facility unless he
is under imminent danger of serious physical injury. See § 1915(g); Smith v.
Sheeley, No. 6:09-CV-002, slip op. at 1 (W.D. Tex. Aug. 20, 2009) (unpublished);
Smith v. Owens, No. 5:09-CV-181, slip op. at 1 (E.D. Tex. Mar. 8, 2010)
(unpublished).
      IFP MOTION DENIED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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