     Case: 12-10445     Document: 00512044699         Page: 1     Date Filed: 11/06/2012




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

                                                                            FILED
                                                                         November 6, 2012
                                     No. 12-10445
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ISMAEL PADILLA,

                                                  Plaintiff-Appellant

v.

CRAIG WATKINS, District Attorney,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2232


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Ismael Hernandez Padilla, Texas prisoner # 356764, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
dismissal of his civil rights complaint in part without prejudice and in part with
prejudice as frivolous. In dismissing the action, the district court certified that
any appeal would not be taken in good faith, and in light of this certification,
Padilla’s IFP motion was deemed moot. By moving in this court for IFP status,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10445    Document: 00512044699       Page: 2   Date Filed: 11/06/2012

                                  No. 12-10445

Padilla is challenging the district court’s certification. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
      In his submissions to this court, Padilla asserts that he was convicted in
violation of a litany of his constitutional rights. However, he does not address
the district court’s reasons for its certification, namely, that Padilla lacked
standing to bring one of his claims related to the denial of DNA testing, that his
claims based on earlier requests for DNA testing were time barred, and that a
claim alleging a civil conspiracy was time barred and unsupported by sufficient
factual allegations. See Baugh, 117 F.3d at 202. Padilla, thus, has abandoned
his challenge to the district court’s certification decision. See Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Padilla’s appeal is without arguable merit and is thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2. The district court’s dismissal of
Padilla’s complaint and this court’s dismissal of his appeal both count as strikes
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996); see also Patton v. Jefferson Correctional Ctr., 136 F.3d
458, 462-64 (5th Cir. 1998) (determining that the dismissal of an action in part
as a frivolous 42 U.S.C. § 1983 suit counted as a strike despite that the district
court also construed the pleading as raising as a claim for postconviction relief
and dismissed it without prejudice for failure to exhaust state court remedies).
Padilla previously accumulated at least one strike and has now, therefore,
accumulated at least three strikes. See Padilla v. Jenkins, No. 3:11-cv-3509
(N.D. Tex. Apr. 9, 2012) (unpublished).          Accordingly, he is barred from
proceeding IFP in any civil action or appeal filed in a court of the United States
while he is incarcerated or detained in any facility unless he “is under imminent
danger of serious physical injury.” § 1915(g).
      IFP MOTION DENIED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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