     Case: 09-60173     Document: 00511036454          Page: 1    Date Filed: 02/26/2010




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

                                                  FILED
                                                                          February 26, 2010
                                     No. 09-60173
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT EARL ELLIS,

                                                   Plaintiff-Appellant

v.

KATHRYN MCINTYRE, ILAP Supervisor, in her individual capacity;
CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS, in his official capacity; LAW RENCE KELLEY,
Superintendent, in his individual capacity; JAMES BREWER, Warden, in his
individual capacity,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:08-CV-95


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Robert Earl Ellis, Mississippi prisoner # 112146, moves this court to
proceed in forma pauperis (IFP) in this appeal from the district court’s dismissal
of his 42 U.S.C. § 1983 complaint. Ellis alleged in the district court that he had
been denied access to the courts because prison officials denied him requested


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60173    Document: 00511036454 Page: 2         Date Filed: 02/26/2010
                                 No. 09-60173

legal materials and legal assistance. The district court determined that Ellis
had failed to state a claim upon which relief could be granted, pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii), because Ellis had failed to establish that he suffered
prejudice as a result of the alleged denial of legal access. The district court also
denied Ellis’s request to proceed IFP on appeal, certifying that the appeal was
not taken in good faith. Ellis’s IFP motion is a challenge to the district court’s
certification that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
      Ellis argues only that he is not financially eligible to prepay the costs of
an appeal and that because the district court allowed him to proceed IFP, he
should be permitted to do so on appeal. Although Ellis lists the constitutional
claims that he would raise on appeal, this does not suffice to show that he will
raise a nonfrivolous appellate claim. See United States v. Ballard, 779 F.2d 287,
295 (5th Cir. 1986) (direct criminal appeal) (determining that a party who offers
only a listing of alleged errors without citing supporting authorities or references
to the record abandons those appellate claims). Because Ellis fails to identify
any error in the district court’s analysis, any argument is abandoned. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Additionally, Ellis is unable to show that he would raise a nonfrivolous
appellate issue because he has not established that the purported denial of
access to the courts impeded his ability to pursue a nonfrivolous legal claim. See
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
      Ellis has not shown that he will present a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion
for leave to proceed IFP is denied and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2. Because Ellis has failed to show
exceptional circumstances, his motion for appointment of counsel is likewise
denied. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).



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   Case: 09-60173   Document: 00511036454 Page: 3        Date Filed: 02/26/2010
                                No. 09-60173

      The dismissal of this appeal and the district court’s dismissal for failure
to state a claim count as two strikes under § 1915(g).         See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Ellis is cautioned that if he
accumulates three strikes, he will no longer be allowed to proceed IFP in any
civil action or appeal filed while he is detained or incarcerated in any facility
unless he is in imminent danger of serious physical injury. See § 1915(g).
      IFP MOTION DENIED; DISMISSED AS FRIVOLOUS; MOTION FOR
APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.




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