     Case: 12-10249     Document: 00511991042         Page: 1     Date Filed: 09/18/2012




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

                                                                            FILED
                                                                        September 18, 2012
                                     No. 12-10249
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

VICTOR LEMOYNE FRANKLIN,

                                                  Plaintiff-Appellant

v.

UNKNOWN BUS DRIVERS, Officially and Individually; RICK THALER,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION, Officially and Individually; LISA
VATANI, Officially and Individually; UNKNOWN SHOTGUN RIDER;
MEDICAL DEPARTMENT; BUS DRIVER #1, Officially and Individually; BUS
DRIVER #2, Officially and Individually; BUS DRIVER #3, Officially and
Individually; UNIVERSITY OF TEXAS MEDICAL BRANCH - GALVESTON;
CAREY S. STAPLES, Assistant Warden, Officially and Individually; VALERIE
STERNER, Medical Provider, Officially and Individually; ROBERT D.
HERRERA, Officially and Individually,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-168


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 12-10249   Document: 00511991042     Page: 2   Date Filed: 09/18/2012

                                 No. 12-10249

      Victor Lemoyne Franklin, Texas prisoner # 1587120, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal. The magistrate judge, before
whom Franklin consented to proceed, denied his IFP motion and certified that
the appeal was not taken in good faith. By moving for IFP status, Franklin is
challenging the magistrate judge’s certification. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
      Aside from conclusional allegations that he cannot effectively proceed
without a transcript of the Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),
hearing and that he has not been given an opportunity to conduct discovery in
order to identify the bus drivers, Franklin does not challenge the magistrate
judge’s determination that the appeal was not taken in good faith. He also does
not address the magistrate judge’s reasons for the certification decision, which
were set forth in the order to dismiss with prejudice as frivolous. Therefore,
these issues are deemed abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Franklin has not shown that the magistrate judge’s certification was
incorrect. The instant appeal is without arguable merit and is thus frivolous.
Accordingly, Franklin’s IFP motion is denied, and his appeal is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir.
R. 42.2. Franklin’s motion for the appointment of counsel on appeal is also
denied.
      The magistrate judge’s dismissal of Franklin’s complaint as frivolous and
the dismissal of the instant appeal as frivolous count as strikes under 28 U.S.C.
§ 1915(g). Franklin 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. See § 1915(g).
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

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