IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50222

Summary Calendar

MIKE PALACIOS,

Plaintiff-Appellant

v.

UNITED STATES MARSHAL SERVICE; LIEUTENANT ASHABRANNER;

MRS. PALMOUR; PHILLIP MAXWELL, United States Marshal; WARDEN

JACK BREWER, Community Education Center; COMMUNITY EDUCATION

CENTERS, INCORPORATED,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 7:11-CV-9

Before DAVIS, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

Mike Palacios, former Texas prisoner # 01637370 and current federal

prisoner # 24824-180, seeks leave to proceed in forma pauperis (IFP) on appeal

of the district court’s dismissal of his 42 U.S.C. § 1983 action, which was also

construed as an action pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971). The district court dismissed his action

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2012

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.

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No. 12-50222

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. The district court also

dismissed on summary judgment Palacios’s denial of medical care claim as being

unexhausted. By moving for leave to proceed IFP, Palacios is challenging the

district court’s certification that his appeal is not taken in good faith because it

is frivolous. See 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).

We review de novo a district court’s summary judgment dismissal based

upon a failure to exhaust. See Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.

2010). Palacios has not demonstrated that the district court erred in granting

the summary judgment motion filed by certain defendants with respect to his

denial of medical care claim. See FED. R. CIV. P. 56(c). The remainder of

Palacios’s claims against the defendants have not been addressed or are

inadequately briefed. Accordingly, those claims have been abandoned. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas

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

Because Palacios has not demonstrated that the district court erred in

certifying that his appeal is not taken in good faith, we deny his IFP motion and

dismiss his appeal as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202

& n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The district court’s

dismissal of his lawsuit and our dismissal of the appeal as frivolous count as two

strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

386-88 (5th Cir. 1996). Palacios has already accumulated one strike under

§ 1915(g) in Palacios v. Desert Springs Med. Ctr., No. 7:06-CV-34 (W.D. Tex.

Mar. 13, 2006). As Palacios has accumulated three strikes, he is advised that he

will no longer be allowed to proceed IFP in any civil action or appeal filed while

he is detained or incarcerated in any facility unless he is under imminent danger

of serious physical injury. See § 1915(g).

Finally, the district court may, as Palacios suggests, have miscalculated

the initial partial appellate filing fee. See 28 U.S.C. § 1915(b)(1)(A)&(B). 

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Nevertheless, because that fee has already been collected from Palacios’s inmate

account, there should not be a hold on his account, and any overpayment of that

fee will reduce Palacios’s indebtedness for the balance of the $455 he owes for

filing this frivolous appeal. A remand to the district court for recalculation of the

initial partial filing fee or for a refund of any overpayment of that fee is not

warranted.

MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL

DISMISSED; § 1915(g) SANCTION BAR IMPOSED.

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