     Case: 12-10679       Document: 00512252334         Page: 1     Date Filed: 05/23/2013




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

                                                                            FILED
                                                                           May 23, 2013
                                     No. 12-10679
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

COSTROMA MITCHELL,

                                                  Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON,
Executive Director; RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; EDDIE
WHEELER, Senior Warden; FNU LEAL, Assistant Warden; SERGEANT
WENDY DOANE; MAJOR FNU LOFTON; CAPTAIN FNU HOOPER; FNU
LAWSON; DENNIS MELTON, Unit Health Administrator; LIEUTENANT
PATRICK SWANNER,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-45


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Costroma Mitchell, Texas prisoner # 689820, moves to proceed in forma
pauperis (IFP) to appeal the magistrate judge’s (MJ) dismissal with prejudice as
frivolous of his 42 U.S.C. § 1983 suit. By moving to proceed IFP, Mitchell is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10679     Document: 00512252334      Page: 2    Date Filed: 05/23/2013

                                  No. 12-10679

challenging the MJ’s certification that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).
      Mitchell argues that officials at the French Robertson Unit of the Texas
Department of Criminal Justice violated the Religious Land Use and
Institutionalized Persons Act (RLUIPA) when they made him chose between
going to a medical appointment at the Montford Unit Hospital and observing a
religious holiday and receiving a disciplinary case for not keeping the
appointment. Given Mitchell’s testimony that, under no circumstance, did he
ever want to go to the Montford Unit for medical treatment, the MJ, whom
Mitchell consented to proceed before, did not abuse his discretion in dismissing
the RLUIPA claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See 42
U.S.C. § 2000cc-1(a); Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004); Taylor
v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). As Mitchell expressly states that
he wished to raise a claim only under RLUIPA, any challenge to the denial of the
remaining claims considered by the MJ has been abandoned. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Because Mitchell has not shown that his appeal involves “legal points
arguable on their merits (and therefore not frivolous),” Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983), the motion for leave to proceed IFP on appeal is denied,
and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2. Mitchell is cautioned that the dismissal of his complaint in the
district court as frivolous and the dismissal of this appeal as frivolous count as
two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Mitchell is further 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 MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

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