                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 05-11008
                          Conference Calendar



JOHN ART GARY,

                                      Plaintiff-Appellant,

versus

DARREN PACE; CLARENCE GRAY JOHNSON; RANDON GRAY;
SANDRA HICKS; BRUCE JONES; RENEE PERRY; JADA ANAE
BRODY; S.W. GRIFFIS; TOMMY RALEY; RUSS UNDERWOOD;
BRIAN CORRIGAN; RACHEL JONES,

                                      Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:05-CV-202
                      --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     John Art Gary, Texas state prisoner # 1282741, moves this

court for leave to appeal in forma pauperis (IFP) following the

district court’s dismissal of his civil rights complaint as

frivolous under 28 U.S.C. § 1915(e)(2)(B).      Gary’s motion for IFP

is construed as a challenge to the district court’s determination

that the appeal is not taken in good faith.     See Baugh v. Taylor,

117 F.3d 197, 202 (5th Cir. 1997).    This court’s inquiry into

     *
       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this opinion should not be published and is not precedent except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. 05-11008
                                  -2-

whether the appeal is taken in good faith “is limited to whether

the appeal involves ‘legal points arguable on their merits (and

therefore not frivolous).’”     Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983) (citation omitted).

     Gary brought suit against several employees of a McDonald’s

restaurant, alleging that he wrongfully was shot in the leg by

one of the employees after he began a robbery of the restaurant

but “changed his mind.”     Gary also named as defendants several

law-enforcement agents; however, he does not appeal from the

district court’s dismissal of his claims against those

defendants.

     Even were this court to accept Gary’s assertion that he

submitted evidence sufficient to support his claim that the

McDonald’s defendants conspired with state actors to protect the

employee who shot him from criminal liability, Gary had no

federal constitutional right to have the employee criminally

prosecuted.     See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.

1990).   Gary thus fails to state a cause of action under

42 U.S.C. § 1983.     See Woods v. Edwards, 51 F.3d 577, 583 (5th

Cir. 1995).     The motion for IFP is denied and the appeal is

dismissed as frivolous.     See Baugh, 117 F.3d at 202 n.24; 5TH

CIR. R. 42.2.

     Gary previously filed a civil rights complaint that was

dismissed as frivolous.     See Gary v. Collins, 6:91cv530 (E.D.

Tex. May 26, 1992).     The dismissal of the instant appeal as
                           No. 05-11008
                                -3-

frivolous counts as two strikes.   See Adepegba v. Hammons,

103 F.3d 383, 387 (5th Cir. 1996).   Because he has accumulated

three strikes under § 1915(g), Gary 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.   See § 1915(g).

     MOTION FOR IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g)

BAR IMPOSED.
