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

                                                FILED
                                                                 May 15, 2009
                                No. 08-30421
                              Summary Calendar              Charles R. Fulbruge III
                                                                    Clerk

LAWRENCE W FITZGERALD, JR

                                           Plaintiff-Appellant

v.

MERCK AND COMPANY INC

                                           Defendant-Appellee


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:05-CV-6618


                      ON PETITION FOR REHEARING


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      IT IS ORDERED that the petition for panel rehearing filed by appellant
is GRANTED. The prior opinion, Fitzgerald v. Merck & Co., Inc., No 08-30421,
2009 U.S. App. LEXIS 2776 (5th Cir. Feb. 11, 2009), is WITHDRAWN, and the
following opinion is substituted.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-30421

      Lawrence W. Fitzgerald, Jr., Colorado prisoner # 66345, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal following the district
court’s denial of his IFP motion and certification that his appeal from the denial
of reconsideration was not taken in good faith. A district court may deny a
motion for leave to appeal IFP by certifying that the appeal is not taken in good
faith and by providing written reasons for the certification. Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). A motion in this court to proceed IFP is construed
as a challenge to the district court’s certification. Id. This court’s inquiry into
whether an appeal is taken in good faith “is limited to whether the appeal
involves legal 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).
      Fitzgerald has not shown that he will raise a nonfrivolous issue on appeal.
The district court denied his IFP motion and stated that his case was closed.
Because Fitzgerald’s case was closed, he has not shown that the district court
erred in denying his IFP motion without addressing the merits of his claims or
providing him with notice and an opportunity to amend his complaint. Further,
Fitzgerald does not have a constitutional right to file an action against Merck for
injuries allegedly caused by the drug Vioxx. See Lewis v. Casey, 518 U.S. 343,
356 (1996) (holding prisoners’ constitutional right of access to courts guarantees
only a “reasonably adequate opportunity to file nonfrivolous legal claims
challenging their convictions or conditions of confinement.”). As the district
court pointed out, Fitzgerald has, or had at one time, the option to pursue his
claims against Merck through contingent fee representation or with the
guidance of the Pro Se Curator appointed by the district court.
      As Fitzgerald has not shown that his appeal presents any nonfrivolous
issues, he has not shown that it is taken in good faith. See Howard, 707 F.2d at
220. Accordingly, Fitzgerald’s IFP motion is denied and his appeal is dismissed
as frivolous. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2.

                                        2
                                  No. 08-30421

      Fitzgerald is cautioned that the dismissal of this appeal as frivolous would
normally count as a strike under 28 U.S.C. § 1915(g).           See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). The record, however, reflects
that Fitzgerald attempted to withdraw this appeal before our ruling, but failed
to return a form motion to dismiss that was sent to him by the clerk’s office.
Thus, we decline to enter a strike against Fitzgerald, but he is cautioned that if
he accumulates three strikes under § 1915(g), he may not 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 § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED.




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