                                                       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, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-50578
                           Summary Calendar



LISA R. KAY,

                                     Plaintiff-Appellant,

versus

TROY C. BENNETT, JR., Official Capacity and Individual
Capacity; MARGARET REAVES, Official and Individual Capacity,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        USDC No. 1:04-CV-92
                       --------------------

Before REAVLEY, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Lisa R. Kay, Texas prisoner # 707717, seeks leave to proceed

in forma pauperis (IFP) in her appeal of the dismissal of her 42

U.S.C. § 1983 complaint.    Kay’s IFP motion is construed as a

challenge to the district court’s certification that her appeal

is not taken in good faith.    Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997).   Our inquiry into Kay’s good faith is limited to

the district court’s reasons for the certification; we consider

the IFP motion to determine “whether the appeal involves legal

     *
       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this opinion should not be published and is not precedent except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. 05-50578
                                 -2-

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

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

quotation marks and citation omitted); Baugh, 117 F.3d at 202.

Because Kay’s complaint was dismissed as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i), we review that dismissal for an abuse

of discretion.    Ruiz v. United States, 160 F.3d 273, 275 (5th

Cir. 1998).

     Kay argues that she stated a valid equal protection claim.

However, examination of her pleadings show that she did not

allege the requisite facts for such a claim.      See Wheeler v.

Miller, 168 F.3d 241, 252 (5th Cir. 1999); Johnson v. Rodriguez,

110 F.3d 299, 306-07 (5th Cir. 1997).      Moreover, Kay has not

refuted the district court’s conclusion that the defendants could

not be held vicariously liable for the alleged violations,

thereby abandoning her challenge to that holding.      See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).       Accordingly, Kay

has not shown that her appeal involves “legal points arguable on

their merits.”    Howard, 707 F.2d at 220.    Accordingly, Kay’s

request for IFP status is denied, and her appeal is dismissed as

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

     The dismissal of this appeal as frivolous and the district

court’s dismissal of the complaint as frivolous both count as

strikes for purposes of 28 U.S.C. § 1915(g).      See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996).      Kay previously

accumulated one strike.    See Kay v. Perret, No. 02-21303 (5th
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                               -3-

Cir. June 24, 2003) (unpublished) (affirming the district court’s

dismissal of Kay’s § 1983 complaint as frivolous).   Kay is now

barred from proceeding IFP in any civil action or appeal filed

which she is incarcerated or detained in any facility unless she

is under imminent danger of serious physical injury.   See

§ 1915(g).

     MOTION DENIED; APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.
