Smith v. Foti, et al

* 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this opinion should not be published and is not precedent except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.
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United States Court of Appeals
Fifth Circuit
F I L E D
September 2, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-30382
Summary Calendar
JAMES SMITH,
Plaintiff-Appellant,
VERSUS
CHARLES C. FOTI; C.M. LENSING; BARON KAYLO,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 03-CV-21-D
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
James Smith, Louisiana prisoner # 112969, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights lawsuit for
failure to state a claim, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). The district court determined that some of
Smith’s claims were barred by the applicable one-year limitations

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period and that Smith had failed to show any causal connection
between his claims and the named defendants. The magistrate judge
denied Smith’s motion to appeal in forma pauperis (“IFP”) and
certified that the appeal was not taken in good faith under 28
U.S.C. § 1915(a)(3) and FED. R. APP. P. 24(a). Smith does not argue
that the magistrate judge lacked authority to make such a finding.
Smith has filed a motion for leave to appeal IFP.
By moving for leave to appeal IFP, Smith is challenging the
magistrate judge’s certification. Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). Smith has not shown that the district court
erred in certifying that the appeal was not taken in good faith.
Smith makes no argument that the district court erred in
determining that some of his claims were time-barred and that he
failed to show the requisite causal connection between his claims
and the named defendants. By failing to brief the only pertinent
issues, he has waived them. Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
This appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Smith’s IFP
motion is DENIED and this appeal is DISMISSED. See 5TH CIR. R.
42.2; Baugh, 117 F.3d at 202 & n.24.
The dismissal of this appeal counts as one strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Smith is WARNED that if he accumulates
three strikes, he will not be allowed to proceed IFP in any civil

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action or appeal while he is incarcerated or detained in any
facility unless he is in imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.

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