                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 20, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-50822
                        Conference Calendar



JOHNNIE R. PROPES,

                                    Plaintiff-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; MARK DIAZ, Warden; DEAN
DUERKSEN, Dr.; WILLIAM GONZALES, Dr.,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        USDC No. 4:04-CV-14
                       --------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

     Johnnie R. Propes, Texas state prisoner # 1178904, has moved

for leave to proceed in forma pauperis (IFP) on appeal following

the district court’s certification pursuant to 28 U.S.C.

§ 1915(a)(3) that his appeal was not taken in good faith.

     Because his notice of appeal was filed after the magistrate

judge issued his report and recommendation but before the

district court had issued its final ruling, Propes sought to


     *
       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this opinion should not be published and is not precedent except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. 04-50822
                                -2-

appeal the magistrate judge’s report and recommendation.   The

district court denied Propes leave to proceed IFP on appeal,

finding that, because the case was still pending before it, the

appeal was not proper and not taken in good faith.

     A premature notice of appeal is valid only when the order

appealed from announces a decision that would be appealable if it

were immediately followed by the entry of judgment.   FirsTier

Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276-77

(1991); see also United States v. Cooper, 135 F.3d 960, 963 (5th

Cir. 1998).   Even if it were immediately followed by the entry of

judgment, the magistrate judge’s report and recommendation was

not appealable.   See Cooper, 135 F.3d at 962-963; see also

Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984).     As

such, Propes’s notice of appeal was insufficient to confer

jurisdiction on this court.   See FirsTier, 498 U.S. at 276-77;

see also Cooper, 135 F.3d at 962-63.   Because Propes seeks to

appeal a nonappealable order, his appeal has no arguable basis in

law or fact and, therefore, is frivolous.   See Howard v. King,

707 F.2d 215, 220 (5th Cir. 1983).   Moreover, as Propes failed to

address the district court’s stated grounds for certifying that

his appeal was not taken in good faith, he has waived the issue.

See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).
                           No. 04-50822
                                -3-

     Accordingly, Propes’s request for leave to proceed IFP on

appeal is DENIED and the appeal is DISMISSED as frivolous.       See

Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.    We earlier

dismissed as frivolous Propes’s appeal in Propes v. Collin County

Sheriff’s Office, 04-40430 (5th Cir. Oct. 20, 2004).    Our

dismissal of the appeal as frivolous and the district court’s

dismissal of the suit in that case as repetitive count as two

strikes under 28 U.S.C. § 1915(g).   See Adepegba v. Hammons, 103

F.3d 383, 385-87 (5th Cir. 1996).

     Because Propes has accumulated at least three strikes under

28 U.S.C. § 1915(g), he is BARRED from proceeding 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.   28 U.S.C. § 1915(g).   We caution Propes to

review his pending appeals and withdraw any that are frivolous.

     Propes’s motions for the appointment of counsel on appeal

and for an order directing prison officials to tender to him a

copy of his medical records are DENIED.

IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
