                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 22, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 04-50122
                        Conference Calendar


ALBERT DE LA GARZA,

                                    Plaintiff-Appellant,

versus

A. M. STRINGFELLOW; GARY L. JOHNSON, EXECUTIVE DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE; DOUG DRETKE, DIRECTOR,
CORRECTIONAL INSTITUTIONS DIVISION; HECTOR BARRERA; TERRY FOSTER,
SR.; DAN C. LEWIS; DELOIS TARVER; CALVIN DAVIS; MARTIN
COBRRUBIAS; PATRICIA L. CHARLES,

                                    Defendants-Appellees.

                       --------------------

          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-02-CV-257-JN

                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Albert de la Garza, Texas prisoner # 645460, moves for leave

to proceed in forma pauperis (IFP) on appeal from the denial of

his FED. R. CIV. P. 60(b) motion alleging newly discovered

evidence in support of his 42 U.S.C. § 1983 claim of inadequate

staffing by the Texas Department of Criminal Justice.      The

district court denied de la Garza’s motion for leave to proceed

     *
       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this opinion should not be published and is not precedent except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. 04-50122
                                -2-

IFP on appeal and certified that his appeal was not taken in good

faith.

     De la Garza challenges the district court’s determination

that his appeal is not taken in good faith.    See Baugh v. Taylor,

117 F.3d 197, 202 (5th Cir. 1997).   To establish good faith, de

la Garza must show that his appeal involves legal points which

are arguable on their merits and not frivolous.    See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983).   To the extent that any

of the information that de la Garza provided qualifies as newly

discovered, it does not establish a constitutional violation.

Additionally, his contention that the district court erred by

ruling on his FED. R. CIV. P. 60(b) motion prior to his filing a

reply brief is without merit.   See W.D. TEX. LOCAL R. CV-7(e).

Accordingly, we uphold the district court’s certification that

the appeal presents no nonfrivolous issues.   De la Garza’s motion

for leave to proceed IFP on appeal is denied, and his appeal is

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

     The district court’s dismissal of de la Garza’s complaint

for failure to state a claim and this dismissal both count as

strikes under 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103

F.3d 383, 387-88 (5th Cir. 1996).    De la Garza is warned that if

he accumulates a third strike, 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).
                         No. 04-50122
                              -3-

    IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING

ISSUED.
