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

                                                                    FILED
                                                                   August 19, 2008
                                 No. 07-20660
                              Conference Calendar              Charles R. Fulbruge III
                                                                       Clerk

ALFRED LEE BRANUM

                                             Plaintiff-Appellant

v.

EUGENE JOSEPH FONTENOT, JR

                                             Defendant-Appellee


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CV-2077


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Alfred Lee Branum, Texas prisoner # 286354, seeks leave to proceed in
forma pauperis (IFP) on appeal of the district court’s dismissal as malicious of
his civil action. By moving for leave to proceed IFP, Branum is challenging the
district court’s certification that his appeal is not taken in good faith because it
is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); FED. R. APP. P. 24(a)(5).



      *
      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should not be published and is not precedent except under the limited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. 07-20660

      Branum does not challenge the district court’s certification that his appeal
is not taken in good faith. Instead he argues that the Constitution requires that
he be granted leave to proceed IFP on appeal because he does not have the
money to pay the appellate filing fee.
      There is no constitutional right to proceed in a civil action without paying
the proper filing fee; the ability to proceed IFP is a privilege that may be
extended or withdrawn. Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir. 1997).
Accordingly, Branum’s assertion that the good faith certification requirement
violates his constitutional rights is without merit. See id. at 290-91. As Branum
does not challenge the district court’s certification that his appeal is not taken
in good faith, he has waived any such challenge. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Branum argues that the district court improperly required that he pay the
$455 appellate filing fee in installments while simultaneously denying him leave
to proceed IFP on appeal. However, “the plain language of [§ 1915(b)(1)]
requires that appellate fees be assessed at the moment the appeal is filed,
regardless of whether the appeal is later dismissed.” Williams v. Roberts, 116
F.3d 1126, 1128 (5th Cir. 1997). Accordingly, the district court did not err by
ordering that the appellate filing fee be taken from Branum’s prison trust
account in installments pursuant to § 1915(b). See id.; Baugh, 117 F.3d at 202
& n.22.
      Branum’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the
appeal is dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.
      Both this court’s dismissal of the instant appeal and the district court’s
dismissal of Branum’s complaint count as strikes for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). During the pendency
of this appeal, this court imposed the § 1915(g) bar against Branum. See
Branum v. Johnson, 265 F. App’x 349, 350 (5th Cir. 2008).             Branum is

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admonished that 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.” § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
REMAINS IN EFFECT.




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