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

                                                                            FILED
                                                                          March 26, 2008
                                     No. 07-10781
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

KODY DELANEY HASTINGS

                                                  Plaintiff-Appellant

v.

CITY OF DALLAS POLICE DEPARTMENT; DALLAS COUNTY

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1422


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Kody Delaney Hastings, Texas prisoner # 1333980, has filed a motion for
leave to proceed in forma pauperis (IFP) in this appeal from the district court’s
dismissal of his 42 U.S.C. § 1983 action against the City of Dallas and Dallas
County. His motion for leave to file a supplemental brief is granted. Hastings
amended his complaint to name the City of Dallas as a defendant, instead of the
Police Department. The district court dismissed Hastings’s § 1983 claims
against the City of Dallas and Dallas County because Hastings had not alleged


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10781

that a custom or policy of the City of Dallas or Dallas County caused the alleged
violations of his constitutional rights.
      The district court also denied Hastings’s request to proceed IFP on appeal,
certifying that the appeal was not taken in good faith. Hastings’s IFP motion is
a challenge to the district court’s certification that his appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Hastings has not identified any error in the district court’s determination
that he did not allege in his pleadings in the district court a custom or policy of
the City of Dallas and Dallas County that caused the alleged violations of his
constitutional rights. Because he has not identified any error in the district
court’s analysis, the argument is abandoned. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      For the first time on appeal, Hastings alleges that the City of Dallas had
an official policy of allowing police officers who work as private security guards
to wear police uniforms and that this policy caused the deprivation of his
constitutional rights. Hastings also argues, for the first time on appeal, that his
Fourth Amendment rights were violated by an unconstitutional search and
seizure, his Fifth Amendment due process rights were violated, and the state’s
prosecution of him was malicious. We will not consider new allegations or new
legal theories raised for the first time on appeal. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). However, even if Hastings’s
allegation concerning a Dallas policy or custom is considered, he has not
demonstrated how this alleged policy caused the deprivation of his constitutional
rights. See McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308,312 (5th Cir.
2002).
      Hastings asks this court to allow him to add two Dallas police officers as
defendants. Hastings had ample opportunity to move to amend his complaint
to add defendants in the district court. He could have moved to amend his
complaint after the magistrate judge recommended that the complaint be

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dismissed because he had not alleged that his rights were violated as a result of
a custom or policy of the City of Dallas. Hastings did not move to amend his
complaint at any time in the district court, and he seeks to add defendants for
the first time in this appeal. Under such circumstances, Hastings has foregone
his opportunity to amend his complaint.
      Hastings 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; 5TH CIR. R. 42.2.
      The dismissal of Hastings’s complaint by the district court as frivolous and
the dismissal of this appeal as frivolous each count as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Hastings is cautioned that if he accumulates three strikes under § 1915(g), he
will not be able 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. § 1915(g).
      MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; IFP MOTION
DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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