   Case: 12-50359       Document: 00512026541         Page: 1     Date Filed: 10/19/2012




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

                                                                            FILED
                                                                         October 19, 2012
                                     No. 12-50359
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




FLOYD BRYANT WARE,

                                                  Plaintiff-Appellant,

versus

KAY SHEELEY, Warden, Boyd Unit;
RACHEL WEST, Classification, Boyd Unit,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 6:10-CV-306




Before SMITH, PRADO, and HIGGINSON, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50359    Document: 00512026541      Page: 2    Date Filed: 10/19/2012

                                  No. 12-50359

      Floyd Ware, Texas prisoner # 1451138, moves for leave to proceed in forma
pauperis (“IFP”) on appeal. He filed a 42 U.S.C. § 1983 complaint against Senior
Warden Kay Sheeley and Chief of Unit Classification Rachel West, alleging that
gang members have threatened to kill him and that defendants have failed to
protect him by not placing him in protective custody. The district court granted
defendants’ motion for summary judgment on the ground that, inter alia, there
was no genuine issue of material fact regarding whether defendants had failed
to protect Ware. The court also denied Ware leave to proceed IFP on appeal, cer-
tifying that the appeal was not taken in good faith.
      By moving for leave to proceed IFP on appeal, Ware is challenging that
certification. See 28 U.S.C. § 1915(a)(3); Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into 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) (internal quotation marks and citation
omitted). If we uphold the certification, the appellant must pay the filing fee, or,
alternatively, we can dismiss the appeal sua sponte under 5th Circuit Rule 42.2
if it is frivolous. Baugh, 117 F.3d at 202 & n.24; Rule 42.2.
      The district court reviewed the summary judgment evidence and concluded
that Ware had failed to show that defendants knew of and disregarded a sub-
stantial risk of serious harm. The court relied on evidence that defendants had
investigated Ware’s claims of life endangerment and that Ware had refused to
cooperate fully with the investigations. In the brief in support of his motion for
leave to proceed IFP, Ware reurges his allegations that his life is endangered.
He fails meaningfully to address or respond to the district court’s conclusions by
pointing to evidence that substantiates his claims of life-endangerment or that
shows that defendants’ responses to his claims were unreasonable. See Farmer
v. Brennan, 511 U.S. 825, 837, 844 (1994). Therefore, he has failed to raise a
nonfrivolous issue for appeal with respect to the dismissal of his § 1983
complaint.

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  Case: 12-50359    Document: 00512026541     Page: 3   Date Filed: 10/19/2012

                                 No. 12-50359

      The appeal lacks arguable merit and is therefore frivolous. See Howard,
707 F.2d at 220. The motion for leave to proceed IFP is DENIED, and the appeal
is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; Rule 42.2.
      The dismissal of the appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Ware is warned that if he accumulates three strikes, he will not be
allowed to proceed IFP in any civil action or appeal unless he is under imminent
danger of serious physical injury. See § 1915(g).




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