                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 15, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-51117
                           Summary Calendar



COREY DURAN DAVIS,

                                      Plaintiff-Appellant,

versus

MCLENNAN COUNTY JAIL; INMATE COOPER; GARY WOLLARD,
also known as Garrett Woolard,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 6:03-CV-105
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Corey Duran Davis, Texas prisoner # 1156649, seeks leave to

proceed in forma pauperis (IFP) to appeal the district court’s

summary judgment in favor of Gary Wollard in Davis’s 42 U.S.C.

§ 1983 civil rights action.    After granting summary judgment to

Gary Wollard, the district court denied Davis’s petition to

proceed IFP on appeal, certifying that the appeal was not taken

in good faith.



     *
       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this opinion should not be published and is not precedent except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. 05-51117
                                -2-

     By moving this court for leave to proceed IFP, Davis is

challenging the district court’s certification.   See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P.

24(a)(5).   He argues that: (1) the district court erred in

granting summary judgment because there was a genuine issue of

material fact concerning whether Wollard’s actions were

objectively reasonable; (2) the district court erred in granting

summary judgment without allowing discovery; (3) the district

court erred in granting summary judgment without allowing him an

opportunity to amend his complaint; and (4) the district court’s

summary of the facts was not supported by the record.   Davis has

not demonstrated any nonfrivolous ground for appeal.

     Davis has not shown that there was a genuine issue of

material fact concerning whether Wollard’s actions were

objectively reasonable.   Whether Wollard’s delay in moving Davis

to another cell was objectively reasonable under the

circumstances of this case is a legal issue, not a genuine issue

of material fact that would preclude the court from granting

summary judgment.   See Gonzales v. Dallas County, Texas, 249 F.3d

406, 411 & n.4 (5th Cir. 2001).   Even if all of Davis’s

allegations are accepted as true, the summary judgment evidence

showed that Wollard did not have any information indicating that

Davis feared that he would be attacked by a specific inmate.

Davis has not shown that the district court erred in determining

that Wollard’s actions were objectively reasonable under the
                           No. 05-51117
                                -3-

circumstances and that he was entitled to qualified immunity.

See Johnson v. Johnson, 385 F.3d 503, 524-25 (5th Cir. 2004).

     Davis argues that if the district court had allowed him to

conduct discovery, he could have obtained evidence showing that

he told an unknown prison officer that his life was in danger and

that Wollard knew that his nickname was Duke.   Although Davis

alleged the violation of a clearly established right, he has not

shown that the district court erred in granting summary judgment

without allowing him to conduct discovery.   Even if Davis

obtained this evidence through discovery and presented it with

his response to the summary judgment motion, he could not have

shown that Wollard’s actions were objectively unreasonable.

     Davis argues that the district court erred in granting

summary judgment without giving him an opportunity to amend his

complaint.   Because Davis’s original complaint alleged all of the

essential facts surrounding his claim and, therefore, pleaded his

best case, the district court did not err in granting summary

judgment without allowing him to amend his complaint because

amendment would have been futile.    See Jacquez v. Procunier,

801 F.2d 789, 793 (5th Cir. 1986).

     Davis argues that the district court’s summary of the facts

is not supported by the record.   The district court accepted all

of Davis’s allegations as true, and its summary of the facts as

alleged by Davis was accurate and supported by the record.
                             No. 05-51117
                                  -4-

     Davis has failed to show that his appeal involves “legal

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

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

for IFP is therefore denied, and his appeal is dismissed as

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

The dismissal of this appeal as frivolous counts as a strike

under 28 U.S.C. § 1915(g).    Davis is cautioned that if he

accumulates three strikes, he will not be allowed to 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 AS FRIVOLOUS; SANCTION

WARNING ISSUED.
