     Case: 10-30242 Document: 00511273768 Page: 1 Date Filed: 10/25/2010




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

                                                 FILED
                                                                          October 25, 2010
                                     No. 10-30242
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

KEITH STEWART,

                                                   Plaintiff-Appellant

v.

Mrs. UNKNOWN SENG, M.D.; CHARLES GAYLORD, Sergeant; UNKNOWN
EMT’S,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                               USDC No. 3:09-CV-17


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Keith Stewart, Louisiana prisoner # 98926, moves for leave to proceed in
forma pauperis (IFP) following the district court’s certification that his appeal
from the grant of summary judgment for the remaining defendant in his civil
rights action is taken in bad faith. He also moves for appointment of counsel; his
motion for appointment of counsel is denied.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30242 Document: 00511273768 Page: 2 Date Filed: 10/25/2010

                                 No. 10-30242

      Stewart gives no indication of the issues he will raise on appeal apart from
his conclusional assertion that the district court dismissed his action before he
could present evidence. Stewart has failed to brief any issues for his challenge
to the district court’s certification that his appeal is taken in bad faith. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). His IFP motion is denied.
      This court may sua sponte dismiss an appeal pursuant to Fifth Circuit
Rule 42.2 if “the merits are so intertwined with the certification decision as to
constitute the same issue” and it is apparent that the appeal would lack merit.
Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). The district court’s
certification was based on the merits of Stewart’s claim against a particular
physician, and therefore is intertwined with the merits of the case. Because
Stewart has failed to brief his challenge to the certification, his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24.
      Our dismissal of this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We
caution Stewart that if he accumulates three strikes, he will not be permitted to
proceed IFP in any civil action or appeal filed while incarcerated or detained in
any facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
      IFP DENIED; APPEAL DISMISSED; APPOINTMENT OF COUNSEL
DENIED; SANCTION WARNING ISSUED.




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