IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31270

Summary Calendar

JOHN H. JONES,

Plaintiff - Appellant

v.

WEST BATON ROUGE PARISH; WEST BATON ROUGE PARISH SHERIFF’S

DEPARTMENT,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:10-CV-411

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

John H. Jones, Louisiana prisoner # 313554, seeks leave to proceed in

forma pauperis (IFP) on appeal of the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint as frivolous. He also seeks appointment of counsel on appeal. 

By moving for leave to proceed IFP, Jones is challenging the district court’s

certification that his appeal is not taken in good faith because it is frivolous. See

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-31270 Document: 00511564008 Page: 1 Date Filed: 08/05/2011
No. 10-31270

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).

Jones does not appeal the district court’s dismissal of the West Baton

Rouge Parish Sheriff’s Department as a defendant. Rather, Jones argues that

his appeal is taken in good faith and the district court should have dismissed his

complaint only in part, not as to West Baton Rouge Parish, because the parish

is considered an individual capable of being sued under Section 1983. The

district court, however, dismissed Jones’s claims against West Baton Rouge

Parish because Jones had failed to allege any facts against the parish which rose

to the level of a constitutional violation, not because the parish is incapable of

being sued. As Jones does not address the district court’s rationale for

dismissing his Section 1983 action, he has waived any challenge he could bring

to the dismissal of his Section 1983 action. See Brinkmann v. Dall. Cnty. Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Jones’s appeal is without arguable merit and is frivolous. See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the IFP motion is denied,

and the appeal is dismissed. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2. 

Jones’s motion for appointment of counsel is also denied. See Cooper v. Sheriff,

Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991). 

Jones is cautioned that the dismissal of this appeal as frivolous and the

district court’s dismissal of the complaint both count as strikes under 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He

is cautioned that if he accumulates three strikes under Section 1915(g), he will

be unable to proceed in forma pauperis 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; MOTION FOR

APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.

2

Case: 10-31270 Document: 00511564008 Page: 2 Date Filed: 08/05/2011