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Samples v. Woods, 02-10974 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 02-10974 Visitors: 8
Filed: Apr. 22, 2003
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 22, 2003 Charles R. Fulbruge III Clerk No. 02-10974 Conference Calendar CHARLES WILBURN SAMPLES, Plaintiff-Appellant, versus LESLIE WOODS, Warden Allred Unit; KENNETH R. BRIGHT, Major; TIMOTHY TALLMAN, Correctional Officer III; LADONNA MITCHELL, Correctional Officer III; THOMAS KIRBY, Correctional Officer III; KENNETH LATHAM, Sergeant; MARK E. ADKINS, Lieutenant; JAMES W. HART
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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 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-10974
                        Conference Calendar


CHARLES WILBURN SAMPLES,

                                         Plaintiff-Appellant,

versus

LESLIE WOODS, Warden Allred Unit; KENNETH R. BRIGHT,
Major; TIMOTHY TALLMAN, Correctional Officer III; LADONNA
MITCHELL, Correctional Officer III; THOMAS KIRBY,
Correctional Officer III; KENNETH LATHAM, Sergeant; MARK
E. ADKINS, Lieutenant; JAMES W. HART, JR., Captain; NFN
SMITH, Property Officer; DEBRA SIZEMORE, Correctional
Officer; JESSE CORRECTIONAL OFFICER; BRIAN A. POLLOCK,
Correctional Officer; ERNEST D. IVEY, Disciplinary Hearing
Officer; CHERYL D. BERGER, Unit Grievance Coordinator; ALVIN L.
EASTERLING, Unit Grievance Coordinator; BELINDA GENTRY, Open
Records Coordinator; HERMON DIDLO, Psychology Dr.; JOHN WOMBLE,
Dr.; NFN KING, Correctional Officer; PAMELA FRENCH, Correctional
Officer; JOHN WIRTZ, Sergeant; DAVID LAMBERT, Sergeant,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 7:01-CV-31-R
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Charles Wilburn Samples, a Texas prisoner (# 683547),

challenges the district court’s denial of his application to


     *
        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. 02-10974
                                 -2-

proceed in forma pauperis (“IFP”) on appeal following the

district court’s dismissal of his 42 U.S.C. § 1983 complaint as

frivolous, under 28 U.S.C. § 1915(e)(2)(B)(i).    Samples is

effectively challenging the district court’s certification that

he should not be granted IFP status because his appeal is not

taken in good faith.    See Baugh v. Taylor, 
117 F.3d 197
, 202 (5th

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

     By failing to direct his motion solely to the district

court’s reasons for the certification decision, however, Samples

has effectively abandoned the only issue that is properly before

this court.    See 
Baugh, 117 F.3d at 202
; Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993).    Accordingly, Samples’ request

for IFP status 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 and the dismissal

of the complaint as frivolous by the district court both count

as “strikes” for purposes of the “three strikes” provision,

28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 
103 F.3d 383
, 388

(5th Cir. 1996).    Samples is cautioned that if he accumulates

three strikes, he will not be permitted to 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 28 U.S.C. § 1915(g).

     IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES BAR

WARNING ISSUED.

Source:  CourtListener

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