     Case: 15-60262      Document: 00513335950        Page: 1     Date Filed: 01/08/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 15-60262                                 FILED
                                                                            January 8, 2016
                                                                             Lyle W. Cayce
DAVID GARLAND ATWOOD, II,                                                         Clerk

                                                Plaintiff-Appellant

v.

JOHN LYONS; AMERICA ONLINE, INCORPORATED;                                          YAHOO,
INCORPORATED; OTHER UNKNOWN INDIVIDUALS,

                                                Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CV-711


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
      David Garland Atwood, II, federal prisoner # 07954-043, seeks leave to
proceed in forma pauperis (IFP) in his appeal from the district court’s dismissal
of his civil complaint for failure to state a claim on which relief can be granted.
Atwood alleged various claims arising from the purported hacking of a website
that he controlled and the use of that appropriated website to disparage him.




      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 15-60262       Document: 00513335950   Page: 2   Date Filed: 01/08/2016


                                  No. 15-60262

      By moving to proceed IFP, Atwood is challenging the district court’s
certification that the 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)(5). Our inquiry into an
appellant’s 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).
We may dismiss the appeal if it is frivolous. See Baugh, 117 F.3d at 202 n.24;
5TH CIR. R. 42.2.
      Atwood has failed to brief any argument addressing the district court’s
reasons for dismissing the complaint and certifying that the appeal was not
taken in good faith. Accordingly, Atwood has abandoned any challenge to the
certification decision, see Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987), and failed to show that his appeal involves any
arguably meritorious issue, see Howard, 707 F.2d at 220. Because he has not
demonstrated that his appeal involves a nonfrivolous issue, we deny his motion
to proceed IFP and dismiss the appeal as frivolous. See Baugh, 117 F.3d at
202 & n.24; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.
      Both the district court’s dismissal of the complaint for failure to state a
claim and our dismissal of this appeal count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
We caution Atwood that, if he accumulates three strikes, 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 DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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