     Case: 11-30183     Document: 00511571381         Page: 1     Date Filed: 08/15/2011




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

                                                                            FILED
                                                                          August 15, 2011
                                     No. 11-30183
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DAVID WAYNE POYDRAS,

                                                  Plaintiff-Appellant

v.

KEVIN J. MARTIN; JOHN DOE; TED FRIEDBURY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:10-CV-1645


Before DAVIS, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        David Wayne Poydras, Louisiana prisoner # 115750, proceeding pro se,
moves this court for authorization to proceed in forma pauperis (IFP) in an
appeal of the district court’s judgment dismissing his 42 U.S.C. § 1983 complaint
as frivolous and for failure to state a claim upon which relief may be granted.
Poydras contends that he filed his complaint as a § 1983 proceeding because
there was an attempt on his life in prison when he filed a postconviction
proceeding.     Poydras asserts that hypnosis should not be allowed as an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30183    Document: 00511571381      Page: 2   Date Filed: 08/15/2011

                                  No. 11-30183

investigative tool in order to make citizens guilty of crimes. Poydras also makes
the allegation that “the district attorney went into the jury room during
deliberations and threatened to kill [the jury] and their families if they did not
vote guilty.”
      By moving to proceed IFP, Poydras is challenging 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). Poydras, however, does not challenge the district
court’s reasons for dismissing his § 1983 complaint.         Accordingly, he has
abandoned any challenge to the district court’s determination that his § 1983
action was frivolous and failed to state a claim upon which relief may be granted.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). Moreover, Poydras’s assertions only confirm the district court’s
certification decision that Poydras’s complaint is frivolous on its face. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
      Poydras 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) (internal quotation marks and citations omitted). His IFP
motion is therefore denied, and his appeal is dismissed. See Baugh, 117 F.3d at
202 & n.24; see also 5th Cir. R. 42.2. Poydras’s motion for appointment of counsel
is denied as well. The district court’s dismissal of his complaint and this court’s
dismissal of this appeal as frivolous count as two strikes for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). Poydras is cautioned that if he accumulates three strikes under § 1915(g),
he may not 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).
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.



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