     Case: 17-30484      Document: 00514430466         Page: 1    Date Filed: 04/16/2018




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

                                                                              FILED
                                      No. 17-30484                        April 16, 2018
                                                                         Lyle W. Cayce
VERNON GOODLOW,                                                               Clerk


                                                 Plaintiff-Appellant

v.

JAMES M. LEBLANC; BURL CAIN; L. ROBLIN, Lieutenant; UNKNOWN
HAYES, Major; UNKNOWN WOLFSON, Major; UNKNOWN ELROY, Major;
CLASSIFICATION OFFICERS OF EAST AND WEST YARD AT LOUISIANA
STATE PENITENTIARY; TRISH FOSTER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CV-788


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Vernon Goodlow, Louisiana prisoner # 93838, moves for leave to proceed
in forma pauperis (IFP) on appeal of the district court’s dismissal of his
complaint in his 42 U.S.C. § 1983 action as frivolous and for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e) and 1915A. The district court denied
Goodlow’s IFP motion and certified that his 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 17-30484

for the reasons stated in the magistrate judge’s report and the district court’s
amended opinion and judgment. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). By moving for leave to proceed IFP, Goodlow challenges the district
court’s certification that his appeal is not taken in good faith. See Baugh, 117
F.3d at 202.
      In his brief, Goodlow raises new claims for the first time on appeal
concerning incidents that occurred after he filed his complaint. Those claims
are not properly before this court. See Hannah v. United States, 523 F.3d 597,
600 n.1 (5th Cir. 2008); Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
      Goodlow’s IFP motion fails to make the requisite showing. He does not
identify any error in the district court’s dismissal of his claims or in the district
court’s certification decision. Goodlow’s failure to identify any error in the
district court’s decision is the same as if he had not appealed the judgment.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). As a result, he has waived any challenge to the district court’s IFP
ruling and, therefore, cannot show that the district court’s certification
decision was an abuse of discretion. See Hughes v. Johnson, 191 F.3d 607, 612-
13 (5th Cir. 1999); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Because
Goodlow has failed to rebut the district court’s finding that his appeal lacks
arguable merit, his appeal is frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2. Goodlow’s motion for appointment of counsel is also denied.
      The district court’s dismissal and the dismissal of this appeal each count
as one strike under 28 U.S.C. § 1915(g). See Brown v. Megg, 857 F.3d 287, 290-
92 (5th Cir. 2017); Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). A
prior § 1983 action filed by Goodlow was dismissed as frivolous and for failure
to state a claim pursuant to §§ 1915(e) and 1915A. See Goodlow v. LeBlanc,
No. 3:15-CV-00676 (M.D. La. May 3, 2016). This dismissal also counts as a



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                                 No. 17-30484

strike under § 1915(g). See Brown, 857 F.3d at 290-92; Coleman, 135 S. Ct. at
1763-64. Having now accumulated three strikes for purposes of § 1915(g),
Goodlow may no longer proceed IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is in imminent danger of
serious physical injury. See § 1915(g).
      IFP MOTION DENIED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g)
SANCTION BAR IMPOSED.




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