Mann v. Cabana, 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-61196
Conference Calendar
KELLY MANN,
Plaintiff-Appellant,
versus
DR. DONALD CABANA, Superintendent; EARNEST LEE, Warden; WILLIE
WINTERS, Officer; ERIC FORD, Officer; “UNKNOWN” SHIVERS,
Lieutenant; CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:05-CV-7
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kelly Mann, Mississippi prisoner # 82723, moves this court
for leave to proceed in forma pauperis (IFP) on appeal following
the district court’s dismissal with prejudice of his pro se and
IFP civil rights complaint. The district court dismissed the
complaint for failure to state a claim. See 28 U.S.C.
§ 1915(e)(2)(B)(ii), (g). We construe Mann’s motion as a
challenge to the district court’s determination that the appeal

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No. 05-61196
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is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). A dismissal for failure to state a claim is
reviewed de novo. Black v. Warren, 134 F.3d 732, 734 (5th Cir.
1998). The complaint should not be dismissed unless it appears
“beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Conley
v. Gibson, 355 U.S. 41, 45-46 (1957).
Mann’s brief is noncompliant with Rule 28(a)(9) because he
fails to provide any argument relative to the issues that he
identifies in his brief. See FED. R. APP. P. 28(a)(9); Grant v.
Cuellar, 59 F.3d 523, 524 & n.2 (5th Cir. 1995). Mann’s brief
provides only a restatement of his issues. See Grant, 59 F.3d at
524 & n.2 (5th Cir. 1995).
Accordingly, Mann has failed to present a nonfrivolous issue
for appeal. His motion for 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 district court’s dismissal of Mann’s complaint and
this court’s dismissal of his appeal count as two strikes under
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). We caution Mann that if he accumulates three
strikes, he may no longer 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).
MOTION FOR IFP DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

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