                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 16, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-11429
                        Conference Calendar



CHARLES CLAY WARNER, JR.,

                                    Plaintiff-Appellant,

versus

WILLIAM E. GONZALEZ; ROBERT R. TREON, Warden; HERMAN WESTON;
JAMES D. MOONEYHAM, Warden; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 7:03-CV-174
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Charles Clay Warner, Jr., Texas state prisoner # 502362, has

filed an application to proceed in forma pauperis (“IFP”) on

appeal following the magistrate judge’s order granting the

defendants’ motion for summary judgment and dismissing Warner’s

42 U.S.C. § 1983 complaint.   Warner is effectively challenging

the magistrate judge’s certification that he should not be

granted IFP status because his appeal was not taken in good


     *
       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this opinion should not be published and is not precedent except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. 04-11429
                                   -2-

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

28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).

     However, Warner argues that the magistrate judge’s denial of

his request to proceed IFP on appeal was improper because the

magistrate judge focused on the merits of his claims rather than

his indigency.      Warner has failed to show that the magistrate

judge erred in determining that his appeal was not taken in good

faith because Warner’s underlying claims were frivolous.      Thus,

Warner has failed to demonstrate that he is entitled to proceed

IFP on appeal.      See Baugh, 117 F.3d at 201-02.   Accordingly,

Warner’s request for IFP status is DENIED, and his appeal is

DISMISSED as frivolous.      See Baugh, 117 F.3d at 202 & n.24;

5TH CIR. R. 42.2.

     The dismissal of this appeal as frivolous counts as a strike

for purposes of the three-strikes provision, 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).

Warner is cautioned that if he accumulates three strikes, he will

not be permitted 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.       See

28 U.S.C. § 1915(g).

     IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING

ISSUED.
