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

                                                FILED
                                                                 April 30, 2009
                                No. 08-10472
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

KIRK BAGBY

                                           Plaintiff-Appellant

v.

WICHITA FALLS COUNTY COURTHOUSE; TIMES RECORD NEWS

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 7:08-CV-27


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      Kirk Bagby, Wichita County jail inmate # 10088, has moved for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint under 28 U.S.C. § 1915(e)(2) for failure to state a claim. The
district court denied Bagby IFP status on appeal and certified that the appeal
was not taken in good faith under § 1915(a)(3).




      *
      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should not be published and is not precedent except under the limited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. 08-10472

      By moving for leave to proceed IFP, Bagby is challenging the district
court’s certification that the appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Bagby argues that the district court
erred in dismissing his complaint because he can prove all the “facts” in support
of his complaint and because “he is not a lawyer.” However, he fails to address
the district court’s findings that his slander claim was not cognizable in a federal
action and that the jurisdictional requirements of 28 U.S.C. § 1332 were lacking.
Bagby has thus abandoned any challenge to the district court’s denial of IFP on
appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). To the extent that Bagby argues that the district court
abused its discretion in denying his motion to amend his complaint, there was
no error inasmuch as Bagby’s proposed amendment would have been futile. See
Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003).
      Bagby has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,
Bagby’s motion to proceed IFP is denied. See Baugh, 117 F.3d at 202 n.24.
Because his appeal is frivolous, see Howard, 707 F.2d at 219-20, the appeal is
dismissed. See 5 TH C IR. R. 42.2.
      The district court’s dismissal of Bagby’s § 1983 complaint for failure to
state a claim pursuant to § 1915(e)(2) and our dismissal of this appeal as
frivolous both count as strikes for purposes of § 1915(g).        See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Bagby is warned that, if he
accumulates three strikes pursuant to § 1915(g), 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).
Bagby’s motion for appointment of counsel is denied.
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.



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