     Case: 12-60958       Document: 00512333401           Page: 1    Date Filed: 08/06/2013




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

                                                                              FILED
                                                                            August 6, 2013
                                     No. 12-60958
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

BOBBY E. WILSON, JR.,

                                                   Plaintiff-Appellant

v.

STATE OF MISSISSIPPI; GLORIA GIBBS; ALICIA BOX; JAMES BREWER,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:12-CV-79


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Bobby E. Wilson, Mississippi prisoner # 52274, moves to proceed in forma
pauperis (IFP) in his appeal of the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint. The district court dismissed Wilson’s complaint for failure
to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and imposed a §
1915(g) strike for the dismissal. The district court also denied Wilson’s IFP
motion, certifying that the appeal was frivolous and not taken in good faith.

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-60958     Document: 00512333401     Page: 2   Date Filed: 08/06/2013

                                  No. 12-60958

Wilson challenges the denial of IFP status by arguing that prison procedure in
calculating the term of imprisonment that he served in connection with a 1994
conviction of auto burglary interfered with his constitutional right of access to
the courts.   By moving in this court for leave to proceed IFP, Wilson is
challenging the district court’s certification decision. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). An appeal is taken in good faith if it raises legal
points that are arguable on the merits and thus nonfrivolous. Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
      The arguments presented by Wilson do not establish that the suit that
forms the basis for his denial of access to the courts claim was a nonfrivolous
legal claim, nor do his arguments indicate that the defendants denied his right
of access to the courts. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999). Accordingly, the district court did
not err in determining that Wilson failed to state a claim for the denial of
access to the courts, as his claim for relief is not plausible on its face. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Wilson’s appeal is without arguable
merit and therefore is frivolous. See Howard, 707 F.2d at 219-20. Because the
appeal is frivolous, it is dismissed. See 5TH CIR. R. 42.2. The dismissal of this
appeal as frivolous counts as a strike under § 1915(g), as does the district
court’s dismissal for failure to state a claim. See § 1915(g); Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Wilson is cautioned 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).
      IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.




                                        2
