                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 11, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-50896
                         Summary Calendar



HENSEL JOSEPH, also known as Joseph Hensel,

                                    Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; S. MERCADO, Medical Doctor; UNIVERSITY OF TEXAS
MEDICAL BRANCH,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. SA-00-CV-1263
                       --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Hensel Joseph, also known as Joseph Hensel, federal prisoner

# 69009-004, has filed a motion to proceed in forma pauperis

(IFP) on appeal challenging the district court’s certification

that his appeal was not taken in good faith.     See Baugh v.

Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997).    The district

court dismissed his 42 U.S.C. § 1983 complaint without prejudice


     *
        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that this opinion should not be published and is not precedent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. 03-50896
                                  -2-

as frivolous.    Joseph did not file a notice of appeal; almost two

years later, he moved to proceed IFP and requested a copy of the

record.   After the district court denied both this motion and a

motion for reconsideration, Joseph filed a notice of appeal.

     By moving for IFP status, Joseph has challenged the district

court’s certification decision.       Baugh, 117 F.3d at 202.   The IFP

“motion must be directed solely to the trial court’s reasons for

the certification decision.”    Id.      This court’s inquiry into

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) (quoting Anders

v. California, 386 U.S. 738, 744 (1967)).

     We first conclude that Joseph’s notice of appeal is timely

only as to the denial of his motion for reconsideration of the

denial of his motion to proceed IFP.      Because this motion for

reconsideration was filed more than 10 days after the entry of

the order it challenged, it is properly construed as a motion for

relief from judgment pursuant to FED. R. CIV. P. 60(b).     This

court reviews the denial of a Rule 60(b) motion for an abuse of

discretion.     See Travelers Ins. Co. v. Liljeberg Enter., Inc., 38

F.3d 1404, 1408 (5th Cir. 1994).

     As the district court noted, when Joseph filed his motion to

proceed IFP, he had no pending appeal, and the time for filing a

notice of appeal had passed.    Therefore, we conclude that the

grant of IFP status would have been an empty gesture as it would
                             No. 03-50896
                                  -3-

have allowed Joseph to proceed IFP on a non-existent appeal.     The

district court correctly concluded that Joseph’s appeal from the

denial of reconsideration of this meaningless IFP motion would be

frivolous.   See United States v. Early, 27 F.3d 140, 142 (5th

Cir. 1994) (noting appeal was “from the denial of a meaningless,

unauthorized motion”).

     The district court’s certification that Joseph’s appeal is

not taken in good faith is upheld, his motion for IFP status on

appeal is DENIED, and his appeal is DISMISSED as frivolous.      See

Baugh, 117 F.3d at 202 n.24.    The dismissal of Joseph’s complaint

in the district court as frivolous and the dismissal of this

appeal as frivolous both count as “strikes” for the purposes of

28 U.S.C. § 1915(g).     See Adepegba v. Hammons, 103 F.3d 383, 387-

88 (5th Cir. 1996).    We caution Joseph that once he accumulates

three strikes, he may not 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 28 U.S.C. § 1915(g).

     IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
