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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30348

Summary Calendar

DAVID FUSELIER,

Plaintiff–Appellant,

v.

TONY MANCUSO; CALCASIEU CORRECTIONAL CENTER; UNITED

STATES MARSHAL SERVICE; FEDERAL BUREAU OF PRISONS,

Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:07-CV-1854

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

David Fuselier, federal prisoner # 11580-035, moves for leave to proceed

in forma pauperis (IFP) on appeal following the district court’s denial of his IFP

motion and certification that his appeal was not taken in good faith. Fuselier’s

IFP motion challenging the certification decision “must be directed solely to the

trial court’s reasons for the certification decision.” Baugh v. Taylor, 117 F.3d

197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken in good

faith “is limited to whether the appeal involves legal points arguable on their

United States Court of Appeals

Fifth Circuit

F I L E D

November 12, 2009

Charles R. Fulbruge III

Clerk
No. 09-30348

2

merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th

Cir. 1983) (internal quotation marks and citations omitted).

The district court is directed to dismiss a complaint filed by a prisoner if

the complaint is frivolous or fails to state a claim upon which relief may be

granted. See 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B). Because the district

court dismissed Fuselier’s claims as both frivolous and for failure to state a

claim, our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.

2005).

Fuselier argues that his incarceration in the Calcasieu Correctional Center

violated his due process rights. Fuselier has no constitutional right to be placed

in the penal facility of his choice. See Olim v. Wakinekona, 461 U.S. 238, 245

(1983) (“Just as an inmate has no justifiable expectation that he will be

incarcerated in any particular prison within a State, he has no justifiable

expectation that he will be incarcerated in any particular State.”); Tighe v. Wall,

100 F.3d 41, 42 (5th Cir. 1996) (“A prisoner has no constitutionally protected

interest in a particular facility.”). Further, under 18 U.S.C. § 3621(b), the

Bureau of Prisons was authorized to designate any available correctional facility

to house Fuselier, whether maintained by the Federal Government or otherwise.

Fuselier’s allegation fails to raise a constitutional claim and does not suffice to

show that the district court erred by dismissing his complaint as frivolous and

for failure to state a claim under § 1915A.

Fuselier’s appeal is without arguable merit and is frivolous. Fuselier is

warned that the dismissal of his complaint counts as a strike for purposes of

§ 1915(g) and that the dismissal of his appeal counts as a second strike. See

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Fuselier is also

warned that if he accumulates three strikes, he will not be allowed to bring a

civil action or appeal a judgment IFP unless he is “under imminent danger of

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

DENY IFP MOTION; DISMISS APPEAL; ISSUE SANCTION WARNING.