                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                           F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                                 April 28, 2006

                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                No. 05-50456
                              Summary Calendar


                        JOSE ANTHONY VILLAREAL,

                                                            Plaintiff-Appellant,

                                    versus

           JOSEPH CASAL; TERESA MCCOMB; ROXIE HERNANDEZ,

                                                           Defendants-Appellees.


           Appeal from the United States District Court
                 for the Western District of Texas
                           (4:02-CV-138)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Jose Anthony Villareal, Texas prisoner number 913759, filed

the   instant   42   U.S.C.   §   1983       suit    to   seek   redress    for   the

defendants’ alleged failure to protect him from being assaulted by

another   inmate.      The    district       court    dismissed    his     suit   and

certified that his appeal was not taken in good faith.                     Villareal

challenges the district court’s certification decision pursuant to




      *
       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this opinion should not be published and is not precedent except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.

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Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), and he requests

that this court grant him authorization to proceed IFP on appeal.

     Villareal maintains that the defendants knew or should have

known of his attacker’s violent tendencies and that they violated

his constitutional rights by failing to protect him from the other

inmate. The record evidence refutes these contentions and supports

the district court’s dismissal of Villareal’s suit.           See Resident

Council v. United States Dep’t of Hous. and Urban Dev., 980 F.2d

1043, 1050 (5th Cir. 1993).

     Villareal has failed to show 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). Accordingly, his motion for

authorization to proceed IFP on appeal is denied, and his appeal is

dismissed as frivolous.    See Baugh, 117 F.3d at 202 & n.24.

     The dismissal of Villareal’s appeal as frivolous by this court

counts as a strike under 28 U.S.C. § 1915(g).            See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).                Villareal is

cautioned that once he accumulates three strikes, 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.             See 28 U.S.C. §

1915(g).

      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED


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