* 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this opinion should not be published and is not precedent except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

FILED

February 10, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

04-60627

Summary Calendar

DESMOND EARL PHILLIPS,

Plaintiff-Appellant,

versus

CAROLYN WALKER, Lieutenant, Unit Administration, in her

official and individual capacities; DONALD A. CABANA,

Superintendent, in his official and individual capacities;

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF

CORRECTIONS, in his official and individual capacities; 

QUEEN CHILDS, Property Officer, in her official and individual

capacities; LEONARD C. VINCENT, Senior Counsel, in his

official and individual capacities; JAMES NORRIS, Senior

Counsel, in his official and individual capacities,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:04-CV-143-M-B 

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Desmond Earl Phillips, Mississippi prisoner #35002, moves for

leave to proceed in forma pauperis (IFP) in this appeal from a 42

U.S.C. § 1983 action challenging the confiscation and destruction

of a box of legal papers that had been held in the Parchman legal
2

files storage area. The papers were destroyed pursuant to a prison

policy limiting the amount of legal materials an inmate could keep

in prison storage. The district court denied Phillips’s motion for

leave to proceed IFP on appeal, certifying that the appeal was not

taken in good faith. 

Phillips challenges the district court’s determination that

his appeal was not taken in good faith. See Baugh v. Taylor, 117

F.3d 197, 202 (5th Cir. 1997). To establish good faith, Phillips

must show that his appeal involves legal points which are arguable

on their merits and not frivolous. See Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983). Phillips contends that the district

court erred by failing to state reasons for its certification

decision and asserts that he was denied his right of access to the

courts because the destruction of his legal materials prevented him

from meeting the deadline to file a petition for a writ of

certiorari with the United States Supreme Court. Because Phillips

has not shown that he would have raised a nonfrivolous issue if he

had been able to file a timely petition for writ of certiorari, he

has not established actual injury. See Lewis v. Casey, 518 U.S.

343, 351-52, 355 (1996); Ruiz v. United States, 160 F.3d 273, 275

(5th Cir. 1998). 

Accordingly, we uphold the district court’s certification that

the appeal presents no nonfrivolous issues. Phillip’s motion for
3

leave to proceed IFP on appeal is denied, and his appeal is

dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24. 

The district court’s dismissal of Phillip’s complaint as

frivolous and this dismissal both count as strikes under 28 U.S.C.

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

1996). Phillips is warned that if he accumulates a third strike,

he may not 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; SANCTION WARNING ISSUED