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

                                                FILED
                                                             December 17, 2009
                               No. 09-40157
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

MCCLAIRY JACKSON,

                                           Plaintiff-Appellant

v.

FREDDIE M ENGLISH, Property Officer; NATRENIA L. HICKS Property
Officer; JOE N ROSS, Property Officer; GWENDOLYN J. SPURLOCK, Law
Library Supervisor; FRANKIE REESCANO, Asst. Warden; GREGORY H.
OLIVER, Asst. Warden; JEREMY W LARUE, Lieutenant; LEONTYNE
HAYNES, Sergeant; T REED, CO; SERENA A GOAD, CO IV; FLOYD D HICKS,
Investigator II; TOMMY E. GOODIN, Investigator III; DAVID SWEETIN,
Senior Warden; DEBBIE LILES OMBUDSMAN; GREG ABBOTT, Texas
Attorney General; KELLI WARD, Step II Grievance Investigator; KEITH
CLENDENNEN, Admin. of Offender Grievance Program,

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 9:08-CV-179


Before KING, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-40157

      McClairy Jackson, Texas prisoner # 559327, moves this court for leave to
proceed in forma pauperis (IFP) on appeal following the district court’s dismissal
of his 42 U.S.C. § 1983 suit as frivolous and for failure to state a claim upon
which relief could be granted, pursuant to 28 U.S.C. § 1915A. Jackson’s motion
to proceed IFP on appeal is construed as 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).
      Jackson contends that the dismissal of his lawsuit was error because the
magistrate judge failed to accept the allegations in his pleadings as true. He
contends that he did not challenge the validity of the prison storage policy under
Administrative Directive 03.72 but the improper use of a smaller sized bin by
Eastham Unit officials conducting property searches under the policy. Jackson
now complains that the use of the inappropriate bin is intended to frustrate his
right of access to the courts.
      Even if Jackson’s allegation that officials used smaller bins than allowed
under the policy to measure his property is taken as true, he has not stated a
constitutional claim for the denial of access to the courts because he briefs no
argument that his position as a litigant has been prejudiced as a result. See
McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998); Lewis v. Casey, 518
U.S. 343, 351 (1996); see also Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
      Jackson has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,
his motion to proceed IFP is denied. See Baugh, 117 F.3d at 202. His appeal is
dismissed as frivolous. See 5 TH C IR. R. 42.2.
      The district court’s dismissal of Jackson’s suit as frivolous and the
dismissal of this appeal as frivolous 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). Jackson is cautioned that, if he accumulates three strikes pursuant to

                                        2
                                 No. 09-40157

§ 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.” § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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