                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 14, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-21267
                          Summary Calendar



DESTRY E. THOMAS,

                                    Plaintiff-Appellant,

versus

KELVIN P. MCFARLAND; LANGSTON M. GEORGE-SMART;
RONALD V. WINGO,

                                    Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H-00-CV-2305
                        --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Destry E. Thomas, TDCJ-ID # 654261, has filed a motion to

proceed in forma pauperis (IFP) on appeal.    By moving for IFP

status, Thomas is challenging the district court’s certification

that 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(c)(3); FED.

R. APP. P. 24(a).   Following a two-day jury trial and verdict for

the defendants, the district court found that Thomas’s 42 U.S.C.


     *
        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that this opinion should not be published and is not precedent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. 02-21267
                                 -2-

§ 1983 complaint was frivolous because his “testimony was

contradictory and inconsistent with the physical evidence.”

     Thomas asserts that he presented testimony and evidence to

prove that defendant McFarland used excessive force.     Thomas also

asserts that the district court did not provide proper notice of

a change in trial dates, held him to the same standards as a

licensed attorney, and refused to allow him to present certain

witnesses and evidence.    Based upon our review of the record, we

conclude that none of these issues presents a non-frivolous issue

for appeal.    See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983).   Therefore, we uphold the district court’s order

certifying that the appeal was not taken in good faith.     We also

conclude that the instant appeal is without arguable merit and is

frivolous.    Thomas’s motion to proceed IFP is DENIED, and his

appeal is DISMISSED AS FRIVOLOUS.    See Baugh, 117 F.3d at 202 and

n.24; 5TH CIR. R. 42.2.

     The dismissal of Thomas’s appeal as frivolous counts as a

“strike” for the purposes of 28 U.S.C. § 1915(g).      See Adepegba

v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).    We caution Thomas

that once he accumulates three strikes, 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 28 U.S.C. § 1915(g).
