     Case: 10-31270     Document: 00511564008         Page: 1     Date Filed: 08/05/2011




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

                                                                            FILED
                                                                           August 5, 2011
                                     No. 10-31270
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN H. JONES,

                                                  Plaintiff - Appellant

v.

WEST BATON ROUGE PARISH; WEST BATON ROUGE PARISH SHERIFF’S
DEPARTMENT,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CV-411


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        John H. Jones, Louisiana prisoner # 313554, seeks leave to proceed in
forma pauperis (IFP) on appeal of the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous. He also seeks appointment of counsel on appeal.
By moving for leave to proceed IFP, Jones is challenging the district court’s
certification that his appeal is not taken in good faith because it is frivolous. See




       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 10-31270   Document: 00511564008      Page: 2   Date Filed: 08/05/2011

                                  No. 10-31270

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
Fed. R. App. P. 24(a)(5).
      Jones does not appeal the district court’s dismissal of the West Baton
Rouge Parish Sheriff’s Department as a defendant. Rather, Jones argues that
his appeal is taken in good faith and the district court should have dismissed his
complaint only in part, not as to West Baton Rouge Parish, because the parish
is considered an individual capable of being sued under Section 1983. The
district court, however, dismissed Jones’s claims against West Baton Rouge
Parish because Jones had failed to allege any facts against the parish which rose
to the level of a constitutional violation, not because the parish is incapable of
being sued.    As Jones does not address the district court’s rationale for
dismissing his Section 1983 action, he has waived any challenge he could bring
to the dismissal of his Section 1983 action. See Brinkmann v. Dall. Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Jones’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the IFP motion is denied,
and the appeal is dismissed. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2.
Jones’s motion for appointment of counsel is also denied. See Cooper v. Sheriff,
Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
      Jones is cautioned that the dismissal of this appeal as frivolous and the
district court’s dismissal of the complaint both count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He
is cautioned that if he accumulates three strikes under Section 1915(g), he will
be unable to proceed in forma pauperis 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).
      IFP MOTION DENIED; APPEAL DISMISSED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.



                                        2
