### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-50222 Summary Calendar

MIKE PALACIOS, Plaintiff-Appellant

v. UNITED STATES MARSHAL SERVICE; L I E U TENANT ASHABRANNER; M R S

. PALMOUR; PHILLIP MAXWELL, United States Marshal; WARDE N 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 T e x a s 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 h i s 4 2 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 6, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50222 Document: 00512044658 Page: 1 Date Filed: 11/06/2012No. 12-50222

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. The district c o u rt also dismissed on summary judgment Palacios’s denial of medical care claim as being unexhaus t e d

. B y 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. Se e Ba ugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F E D
. R. AP P
. 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 w i t h respect to his denial of medical care cl a i m . Se e F E D
. R. C IV
. P. 56(c). The remainder of Palacios’s claims against the defendants have not been addressed or are inadequate ly 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. 198 7). Because Pala c i o s 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 ap p e a l a s f riv o lous. See 5 T H C I R
. 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 unde r 2 8 U.S.C. § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 386-88 (5th Cir. 1996). Palacios has already accumulated o n e s trike 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 sugges t s , have miscalculated the initial partial appellate filing fee. See 28 U

. S .C. § 1915(b)(1)(A)&(B).
2 Case: 12-50222 Document: 00512044658 Page: 2 Date Filed: 11/06/2012No. 12-50222

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 b a l a n c e 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 PR O C E ED IFP DENIED; APPEAL DISMISSED; § 1915(g) SANCTION BAR IMPOSED.

3 Case: 12-50222 Document: 00512044658 Page: 3 Date Filed: 11/06/2012