     Case: 09-10959     Document: 00511204503          Page: 1    Date Filed: 08/16/2010




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

                                                 FILED
                                                                           August 16, 2010
                                     No. 09-10959
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FEDERICO HERNANDEZ-HERNANDEZ,

                                                   Plaintiff-Appellant
v.

THOMAS FAGERBERG, Esq.,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 1:09-CV-155


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Federico Hernandez-Hernandez (Hernandez), federal prisoner # 83444-
180, moves this court for leave to proceed in forma pauperis (IFP) on appeal
following the dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for
failure to state a claim. Hernandez brought suit against his former defense
counsel for actions taken by counsel during his representation of Hernandez on
criminal charges.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10959    Document: 00511204503 Page: 2         Date Filed: 08/16/2010
                                 No. 09-10959

      Hernandez’s motion is construed as a challenge to the district court’s
determination that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into whether the appeal
is taken in 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) (citation omitted).
      To succeed in a § 1983 action, the plaintiff must establish a violation of the
laws or constitution of the United States and that this deprivation of rights was
caused by a person acting under color of state law. Leffall v. Dallas Indep. Sch.
Dist., 28 F.3d 521, 525 (5th Cir. 1994). An attorney does not act under color of
state law when he “perform[s] a lawyer’s traditional functions” as defense
counsel in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325
(1981).
      Hernandez’s allegations against his counsel were based on the traditional
functions of an attorney in a criminal proceeding. His appeal of the district
court’s determination that he failed to show state action is thus without merit.
See Polk, 454 U.S. at 325. Accordingly, Hernandez’s motion for IFP is denied
and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5th
Cir. R. 42.2.
      The district court’s dismissal of Hernandez’s complaint and our dismissal
of this appeal as frivolous each count as strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).             We caution
Hernandez 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).
      MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING
ISSUED.



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