     Case: 13-10851      Document: 00512591176         Page: 1    Date Filed: 04/09/2014




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

                                                                                   FILED
                                      No. 13-10851                              April 9, 2014
                                                                              Lyle W. Cayce
RODNEY BERNARD ALLEN,                                                              Clerk


                                                 Plaintiff-Appellant

v.

SHAMELLE N. LYLES, Program Analyst, U.S. Department of Justice, Office
of Professional Responsibility; CRAIG WATKINS, Criminal District Attorney,
Dallas County, Texas; INNOCENCE PROJECT OF TEXAS; MICHAEL L.
WARE, Assistant District Attorney, Dallas County, Texas,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-1480


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Rodney Bernard Allen, federal prisoner # 28935-077, moves this court
for leave to proceed in forma pauperis (IFP) in his appeal of the district court’s
dismissal of his complaint alleging claims under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C.
§ 1983, the Federal Tort Claims Act, and Texas state law. By moving for IFP


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10851     Document: 00512591176     Page: 2   Date Filed: 04/09/2014


                                  No. 13-10851

status in this court, Allen is challenging the district court’s certification that
his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); FED. R. APP. P. 24(a).
      Allen has failed to address the district court’s certification that his
appeal was not taken in good faith or the district court’s reasons for its
certification decision. See Baugh, 117 F.3d at 202. Accordingly, his challenge
to the district court’s certification decision is deemed abandoned.           See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Additionally, Allen has not shown that his “appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Allen’s motion for leave to proceed IFP on appeal is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      The district court’s dismissal of Allen’s complaint, in part, for failure to
state a claim counts as a strike under § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). This court’s dismissal of this appeal also
counts as a strike. See id. Allen 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).
      MOTION FOR IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION WARNING ISSUED.




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