                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-10695
                         Conference Calendar


FRANCIS TEJANI KUNDRA,

                                     Plaintiff-Appellant,

versus

DERST K. AUSTIN; UNNAMED DALLAS POLICE OFFICER,

                                     Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:06-CV-728
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Francis Tejani Kundra, immigration detainee # A20661647,

moves for leave to proceed in forma pauperis (IFP) on appeal and

has filed a brief in support of his appeal.    Kundra seeks to

challenge the district court’s dismissal of his 42 U.S.C. § 1983

claim against Derst K. Austin as frivolous.    The district court

also denied Kundra’s motion for leave to proceed IFP and

certified that an appeal would not be taken in good faith.

     Kundra’s IFP motion is construed as a challenge to the

district court’s certification.    See Baugh v. Taylor, 117 F.3d

     *
       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this opinion should not be published and is not precedent except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. 06-10695
                                 -2-

197, 202 (5th Cir. 1997).   Kundra does not challenge the district

court’s determination that Austin was not a state actor and,

therefore, that issue is abandoned.   See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Nor did the district court err in determining that Kundra may not

bring an action against Austin pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as

a Bivens action requires that the defendant be a federal officer

acting under color of federal law.    See Dean v. Gladney, 621 F.2d

1331, 1336 (5th Cir. 1980).

     For the first time on appeal, Kundra seeks permission to

name Cynthia Figueroa Calhoun as a defendant and to raise a claim

against her for her failure to file his state habeas application.

Kundra may not raise a claim for the first time on appeal.      See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).

     Kundra has failed to show that his appeal involves “legal

points arguable on their merits (and therefore not frivolous).”

See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal

quotation marks omitted).   Accordingly, the motion for leave to

proceed IFP on appeal is denied, and the appeal is dismissed as

frivolous.   See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

Kundra is warned that the filing or prosecution of frivolous

appeals in the future may result in the imposition of sanctions.
                          No. 06-10695
                               -3-

See Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir.

1995); Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987).

     MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
