Luddington v. Bd Pardons & Paroles

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10327
Conference Calendar
CLEMISSON J. LUDDINGTON,
Plaintiff-Appellant,
versus
BOARD OF PARDONS AND PAROLES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:03-CV-250-R
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Clemisson J. Luddington, Texas prisoner # 241638, seeks
leave to proceed in forma pauperis (“IFP”) in this appeal from
the district court’s decision dismissing his 42 U.S.C. § 1983
complaint as frivolous. The district court denied Luddington’s
motion for leave to proceed IFP on appeal and certified that the
appeal was not taken in good faith. Luddington challenges the
district court’s certification decision pursuant to Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997), arguing that the
United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2004
Charles R. Fulbruge III
Clerk

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No. 04-10327
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district court erred by adopting its order of dismissal as the
basis for the certification decision rather than stating the
reasons in the order denying IFP.
Luddington has not shown that the district court erred in
certifying that an appeal would not be taken in good faith.
Accordingly, his request for IFP status is DENIED, and his appeal
is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH
CIR. R. 42.2.
The district court’s dismissal of Luddington’s complaint as
frivolous and this court’s dismissal of his appeal each count as
a “strike” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). If Luddington
accrues 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 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING
ISSUED.

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