Opinion
No. 07-40585 Summary Calendar.
February 13, 2008.
Michael Joseph Derrow, Leavenworth, KS, pro se.
Steven M. Mason, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 9:06-CV-137.
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
Michael Joseph Derrow, federal prisoner # 03199-286, moves this court to proceed in forma pauperis (IFP) in this appeal from the district court's dismissal of his civil lawsuit against several federal officials involved in the prosecution of Derrow's criminal conviction. The district court dismissed Derrow's suit because it was barred by the principles of res judicata; it was an unauthorized successive 28 U.S.C. § 2255 motion; it was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); and it was barred by the statute of limitations. The district court also denied Derrow's request to proceed IFP on appeal, certifying that the appeal was not taken in good faith. Derrow's IFP motion is a challenge to the district court's certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Derrow does not address the district court's reasons for dismissing his lawsuit. Because he fails to identify any error in the district court's analysis, the argument is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Aimer, 813 F.2d 744, 748 (5th Cir. 1987).
Derrow has not shown that he will present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP is denied and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5TH CIR. R. 42.2.
The dismissal of Derrow's lawsuit by 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 (5th Cir. 1996). Derrow is cautioned that if he accumulates three strikes under § 1915(g), 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. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.