     Case: 09-10794     Document: 00511074436          Page: 1    Date Filed: 04/08/2010




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

                                                  FILED
                                                                             April 8, 2010
                                     No. 09-10794
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

GEORGE SMITH,

                                                   Plaintiff-Appellant

v.

THE SHERIFF OF DALLAS COUNTY, TEXAS; UNKNOWN MEDICAL
PERSONAL DOCTOR’S NAME, Employed at the Dallas County Jail;
UNKNOWN MEDICAL PERSONAL DOCTOR’S NAME, Employed by Parkland
Hospital,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CV-503


Before KING, STEWART and HAYNES, Circuit Judges.


PER CURIAM:*
        The district court dismissed the 42 U.S.C. § 1983 suit filed by George
Smith, Texas prisoner # 576067, seeking compensation for the amputation of his
toe following an allegedly erroneous diagnosis of a staphylococcus infection. The
district court determined that the claims raised therein were duplicative of

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10794     Document: 00511074436 Page: 2        Date Filed: 04/08/2010
                                  No. 09-10794

Smith’s prior civil suit against one of the same defendants in Smith v. Bowles,
No. 3:06-CV-1189-N (N.D. Tex. May 16, 2007). The district court denied Smith’s
motion for leave to proceed in forma pauperis (IFP) on appeal based on its
determination that Smith’s appeal was not taken in good faith. We are now
presented with Smith’s request to proceed IFP on appeal and challenge to the
district court’s good-faith determination. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1992). Smith also seeks the appointment of counsel on appeal.
       Smith argues that his § 1983 suit raised claims that implicated his
constitutional rights and that the district court therefore erred in dismissing his
complaint. Smith does not challenge the district court’s determination that the
suit arises from the same series of events underlying his prior civil rights action.
He thus has waived the issue whether the district court erred by certifying that
his appeal would raise no nonfrivolous claims in challenging its dismissal of the
suit as duplicative. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); see
also F ED. R. A PP. P. 28(a)(9). Because Smith has not shown that he will present
any nonfrivolous issue on appeal, his motions for leave to proceed IFP and for
appointment of counsel are denied and this appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);
5 TH C IR. R. 42.2.
       Our dismissal of Smith’s appeal and the district court’s dismissal of his
civil rights suit as frivolous count as two strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We
warn Smith that if he accumulates a third strike pursuant to § 1915(g) he shall
be barred from proceeding IFP while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
       MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.



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