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

                                                FILED
                                                                    April 30, 2009
                                  No. 08-30722
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

ANTHONY LEON GREENHILL
                                             Plaintiff-Appellant

v.

UNITED STATES OF AMERICA, on behalf of Federal Bureau of Investigation;
MARK EDENFIELD; JENNA EPPLIN; FEDERAL BUREAU OF PRISONS;
CORRECTIONAL OFFICER HUNT; D LAIR; CORRECTIONAL LIEUTENANT
MELTON
                                 Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:06-CV-473


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      Anthony Leon Greenhill, federal prisoner # 56411-097, appeals the district
court’s denial of his Federal Rule of Civil Procedure 60(b) motion to reopen a
complaint seeking damages under the Federal Tort Claims Act and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
We previously affirmed the district court’s dismissal of the complaint as frivolous
and for failure to state a claim for relief. Greenhill v. United States, 275 F. App’x


      *
      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should not be published and is not precedent except under the limited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. 08-30722

315, 317 (5th Cir. 2008). Greenhill has moved to proceed in forma pauperis (IFP)
on appeal, challenging the district court’s certification, pursuant to Baugh v.
Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997), that his appeal from the denial of
Rule 60(b) relief is not taken in good faith.
      Greenhill’s argument that the denial of his motion was an abuse of
discretion under Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007),
is frivolous. The decision not to hold a Spears 1 hearing to allow Greenhill to
amend his complaint to add claims against new defendants was within the
discretion of the district court. See Gov’t Fin. Servs. One Ltd. P’ship v. Peyton
Place, Inc., 62 F.3d 767, 770 (5th Cir. 1995). Accordingly, the district court’s
certification that Greenhill’s appeal is not taken in good faith is upheld, and
Greenhill’s motion for IFP is denied.       Because this appeal is frivolous, see
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is dismissed. See
Baugh, 117 F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
      The dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). We caution Greenhill that once he accumulates three strikes, 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 DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                        2
