     Case: 13-60138      Document: 00512449728         Page: 1    Date Filed: 11/21/2013




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

                                                                                      FILED
                                      No. 13-60138                            November 21, 2013
                                                                                 Lyle W. Cayce
JOHN HOWARD OVERSTREET,                                                               Clerk


                                                 Plaintiff-Appellant

v.

WARDEN REGINA HANCOCK; RON KING,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2-11-CV-245


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       John Howard Overstreet, former Mississippi prisoner # 49188, moves
this court for authorization to proceed in forma pauperis (IFP) in an appeal of
the district court’s judgment granting the defendants’ motion for summary
judgment and dismissing Overstreet’s complaint with prejudice. Overstreet
filed a 42 U.S.C. § 1983 complaint arguing that the defendants were denying
him adequate medical treatment in violation of the Eighth Amendment,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60138    Document: 00512449728     Page: 2   Date Filed: 11/21/2013


                                 No. 13-60138

retaliated against him for filing the instant complaint, and violated the
Americans with Disabilities Act.
      By moving to proceed IFP, Overstreet is challenging the magistrate
judge’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our 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) (internal quotation marks and citation omitted).
By failing to address the magistrate judge’s reasons for dismissing his § 1983
complaint or providing any other reason why the magistrate judge’s
certification is erroneous, Overstreet has abandoned any challenge he might
have raised regarding the magistrate judge’s decision. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Overstreet’s appeal is without arguable merit and is thus frivolous. See
Howard, 707 F.2d at 219-20. His IFP motion is therefore denied, and his
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2. His motion for appointment of counsel is denied as well. The dismissal
of Overstreet’s appeal counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Overstreet
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).
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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