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

                                                 FILED
                                                                            March 6, 2009
                                     No. 08-60547
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ANTHONY DWAYNE SWIFT,

                                                   Plaintiff-Appellant,

v.

BARRY STANFORD, Detention Officer/Jailor,

                                                   Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:05-CV-279


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Anthony Dwayne Swift, Mississippi prisoner # 75278, filed a complaint
pursuant to 42 U.S.C. § 1983, alleging that Barry Stanford used excessive force
against him.      Following an evidentiary hearing, the magistrate judge (MJ)
recommended entering judgment in favor of the defendant. The district court
adopted the MJ’s report and recommendation.
       Swift has filed a motion to proceed in forma pauperis (IFP) on appeal. By
moving to proceed IFP, Swift is challenging the district court’s certification that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60547

his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F ED. R. A PP. P. 24(a). He also seeks the
production of the transcript of the evidentiary hearing at government expense.
See 28 U.S.C. § 753(f).
      Swift contends that he is entitled to a jury trial. Swift did not timely
demand a jury trial in the district court. See F ED. R. C IV. P. 38(b). Therefore,
Swift waived his right to a jury trial. See F ED. R. C IV. P. 38(d); Fredieu v.
Rowan Cos., 738 F.2d 651, 653 (5th Cir. 1984).
      Swift argues that the credibility determinations of the MJ were incorrect.
He also contends that he could not be subjected to punishment as a pretrial
detainee. This court cannot second guess the credibility determinations of a
district court. See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir.
2000). Because Swift’s argument rests solely on the issue of credibility, he
cannot show that the district court’s decision was clearly erroneous. See id.
Additionally, as a pretrial detainee, Swift is subject to institutional security
practices and must prove that the measure taken by Stanford was not in an
effort to maintain or restore discipline, but rather was done maliciously and
sadistically for the purpose of causing harm. See Valencia v. Wiggins, 981 F.2d
1440, 1446 (5th Cir. 1993). Because the district court credited testimony that
Swift acted in an aggressive manner which justified the use of force, Swift
cannot succeed on his claim.
      Swift 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 v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH C IR. R. 42.2.
Because Swift’s appeal is frivolous, his motion for transcript at government
expense is denied. See 28 U.S.C. § 753(f); Harvey v. Andrist, 754 F.2d 569, 571
(5th Cir. 1985).



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                                 No. 08-60547

      The dismissal of Swift’s appeal as frivolous counts as one strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Swift has one previous strike. See Swift v. Murry, No. 4:07-CV-075.
Swift 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. 28 U.S.C. § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; MOTION DENIED;
SANCTIONS WARNING ISSUED.




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