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

                                                                            FILED
                                                                           May 21, 2008
                                     No. 07-10712
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




ROY COMBS,

                                                  Plaintiff-Appellant,

v.

BRENITA DUNN, Detective,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:06-CV-1772




Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*


       Roy Combs, federal prisoner # 30807-177, has filed a pro se motion for
leave to proceed in forma pauperis (“IFP”) in his appeal of the dismissal of his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10712

petition for a writ of mandamus, which sought to compel the district court to
investigate and file criminal charges against a Dallas narcotics detective. The
court dismissed the petition as frivolous after concluding that Combs’s claims
are not cognizable under 42 U.S.C. § 1983. The court denied Comb’s motion to
proceed IFP on appeal, certifying that his appeal is not taken in good faith.
      By moving to proceed IFP, Combs is challenging the district court’s certifi-
cation. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). His sole argu-
ment is that he should be allowed to proceed IFP because of his inability to pay
the costs of the proceeding. Despite his showing of economic eligibility, see Ad-
kins v. E. I. duPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), he does not
demonstrate that this appeal is not frivolous. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983).
      It is within the discretion of the prosecutor whether to prosecute and what
charges to file, and Combs does not have the right to bring charges. In re United
States, 397 F.3d 274, 284 (5th Cir. 2005). Federal courts do not have the author-
ity to issue writs of mandamus to direct state courts and their judicial officers
in the performance of their duties. Moye v. Clerk, Dekalb County Superior Court,
474 F.2d 1275, 1276 (5th Cir. 1973).
      Combs’s appeal lacks any issue of arguable merit and is therefore frivo-
lous. See Howard, 707 F.2d at 220. The motion 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.
      Combs is cautioned that the district court’s dismissal of his petition for
writ of mandamus and this court’s dismissal of the appeal as frivolous both count
as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). If Combs accumulates three strikes, he will not
be permitted to proceed IFP in any civil action or appeal filed while he is incar-
cerated or detained in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).

                                        2
                                    No. 07-10712

         The district court’s Prison Litigation Reform Act (“PLRA”) order regarding
the IFP motion does not conform to 28 U.S.C. § 1915(b)(1)(A) & (B) in that it does
not assess Combs an initial partial filing fee, and it states that Combs is to pay
the $455 fee in periodic installments until he has paid the total of $255. This
case is remanded for the limited purpose of allowing the court to correct the
order.
         MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED; REMANDED.




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