                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 14, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-51042
                        Conference Calendar



JAMES STEPHEN JONES,

                                      Plaintiff-Appellant,

versus

WILLIAM JOHNSTON,

                                      Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 6:03-CV-142
                       --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     James Stephen Jones, federal prisoner # 56081-080, requests

permission to appeal in forma pauperis (IFP) the district court’s

dismissal of his civil rights suit as frivolous under 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A because it was time-barred.        Jones is

effectively challenging the district court’s certification that

he should not be granted IFP status because his appeal is not

taken in good faith.   See Baugh v. Taylor, 117 F.3d 197, 202 (5th

Cir. 1997); 28 U.S.C. § 1915(a)(3).


     *
       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this opinion should not be published and is not precedent except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. 04-51042
                                 -2-

       Jones argues that the district judge should have recused

himself because of his friendship with the defendant, because the

judge is a material witness in this Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971), action, and because the judge

recused himself in another case brought by Jones.     Jones further

argues that he is entitled to relief from judgment pursuant to

Federal Rule of Civil Procedure 60(b)(6) because of the

appearance of partiality and that his right to a fair trial is

being violated because he is afraid to challenge the judge.

Jones’s arguments regarding recusal of the judge and for Rule

60(b) relief are not directed to the district court’s reasons for

denying him IFP status and are improper in a motion to proceed

IFP.    See Baugh, 117 F.3d at 202.

       Jones also argues that the defendant’s conduct of placing or

causing to be placed information that Jones “snitched” in other

inmates’ presentence reports continuously places Jones in danger,

thereby tolling the statute of limitations.     The district court

properly dismissed Jones’s complaint as time-barred under either

28 U.S.C. § 1915(e)(2)(b) or § 1915A.      See Ruiz v. United States,

160 F.3d 273, 275 (5th Cir. 1998); Siglar v. Hightower, 112 F.3d

191, 193 (5th Cir. 1997).    Although Texas recognizes a continuing

tort as an exception to the statute of limitations, see Mitchell

Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App. 1997),

Jones has not alleged a continuing tort but only a continuing

injury.    See Rogers v. Ardella Veigel Inter Vivos Trust No. 2,
                            No. 04-51042
                                 -3-

162 S.W.3d 281, 290 (Tex. App. 2005).      Jones’s appeal is lacking

in arguable merit.    Consequently, Jones’s request for IFP status

is denied, and his appeal is dismissed as frivolous pursuant to

5TH CIR. R. 42.2.   See id.; Baugh, 117 F.3d at 202.

     The district court’s dismissal of Jones’s complaint as

frivolous and the dismissal of his appeal as frivolous both count

as strikes under 28 U.S.C. § 1915(g).      See Adepegba v. Hammons,

103 F.3d 383, 387-88 (5th Cir. 1996).      Additionally, Jones has at

least one other strike.    See Jones v. Smith, No. 99-51184 (5th

Cir. June 13, 2000) (unpublished).    Therefore, Jones is barred

from proceeding IFP in any civil action or appeal brought 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); see Adepegba, 103 F.3d at 385.

     IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR

IMPOSED.
