                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40897
                        Conference Calendar


JOHN C. SPURLOCK,

                                    Plaintiff-Appellant,

versus

WAYNE SCOTT, sued in their individual capacities and
official capacities; ARTHUR H. VELASQUEZ, sued in their
individual capacities and official capacities; BRENDA
CHANEY, sued in their individual capacities and official
capacities; AMADO IGLESIAS, sued in their individual
capacities and official capacities; JAMES C. SCHROEDTER,
sued in their individual capacities and official capacities;
FLOYD LANGE, sued in their individual capacities and
official capacities; RANDY E. SMIDT, sued in their
individual capacities and official capacities; MICHAEL K.
LOTT, sued in their individual capacities and official
capacities; PATRICK A. PATEK, sued in their individual
capacities and official capacities; GLEN A YOUNG, sued in
their individual capacities and official capacities; FRANK
RODRIQUEZ, sued in their individual capacities and official
capacities; DEBORAH G. VILLARREAL, sued in their individual
capacities and official capacities,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. V-00-CV-67
                       -------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*


     *
        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that this opinion should not be published and is not precedent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. 03-40897
                                -2-

     John Spurlock, Texas prisoner # 741571, moves for leave to

proceed in forma pauperis (“IFP”) following the district court's

dismissal of his 42 U.S.C. § 1983 civil rights complaint as

frivolous pursuant to 28 U.S.C. § 1915(e).    Spurlock's motion is

a challenge to the district court's certification that his appeal

is not taken in good faith.     See Baugh v. Taylor, 117 F.3d 197,

202 (5th Cir. 1997).

     Spurlock argues that the district court lacked jurisdiction

to consider various orders and should have granted a stay pending

a ruling in the appellate court on his writ of mandamus, that the

district court denied his request for IFP in retaliation for the

mandamus action, and that the district court should have recused

itself from considering Spurlock’s IFP motion.

     Spurlock has filed a motion for leave to supplement his

brief.   His motion is GRANTED.   Spurlock has not shown that

the district court erred in certifying that the appeal is not

taken in good faith.   He has not shown that he will present a

nonfrivolous issue on appeal.     See Howard v. King, 707 F.2d 215,

220 (5th Cir. 1983).   Accordingly, the motion for leave to

proceed IFP is DENIED and the appeal is DISMISSED as frivolous.

Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

     Spurlock is CAUTIONED that the dismissal of this appeal and

the district court’s dismissal count as two “strikes” for

purposes of 28 U.S.C. § 1915(g) and that if he accumulates three

strikes, he will not be able to proceed IFP in any civil action
                           No. 03-40897
                                -3-

or appeal filed while he is incarcerated or detained in any

facility unless he is under imminent danger of serious physical

injury.   See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).

     MOTION TO SUPPLEMENT GRANTED; IFP MOTION DENIED; APPEAL

DISMISSED; SANCTIONS WARNING ISSUED.
