     Case: 10-11186 Document: 00511453387 Page: 1 Date Filed: 04/21/2011




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

                                                 FILED
                                                                            April 21, 2011
                                     No. 10-11186
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




VINCENT JOHN BAZEMORE, JR.,

                                                   Plaintiff-Appellant,

versus

ALAN BUIE, Assistant United States Attorney;
WALT JUNKER, Assistant United States Attorney,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Northern District of Texas
                                 No. 3:10-CV-1505




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Vincent Bazemore, Jr., federal prisoner # 37160-177, seeks leave to pro-




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-11186 Document: 00511453387 Page: 2 Date Filed: 04/21/2011

                                       No. 10-11186

ceed in forma pauperis (“IFP”) in his appeal of the dismissal of his Bivens 1 action
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The motion
is construed as a challenge to the district court’s certification that the appeal is
not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Bazemore challenges the dismissal of his case as barred by res judicata,
arguing that, under the fourth prong of the res judicata test, the two cases at is-
sue do not have the same nucleus of operative facts. See Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). The record indicates,
however, that the instant case in fact does have the same nucleus of operative
facts as Bazemore’s prior complaint filed in No. 3:10-CV-720, which the district
court dismissed on the merits, because both cases concern the execution of the
same property seizure warrants by the same parties. See id. Because Bazemore
has not shown that his complaint alleged facts that, if accepted as true, stated
a claim for relief that was plausible on its face, his complaint cannot survive the
dismissal for failure to state a claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009).
      This appeal is without arguable merit and is thus frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, Bazemore’s request
for leave to proceed IFP on appeal is DENIED, and the appeal is DISMISSED.
See Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2. This dismissal counts as a
strike under 28 U.S.C. § 1915(g). Bazemore is cautioned that if he accumulates
three strikes under § 1915(g), he will not be able to proceed IFP in any civil ac-
tion 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).




      1
          Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

                                              2
