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this opinion should not be published and is not precedent except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

May 2, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10700

Summary Calendar

 

ARNOLD RAY REED; JOHN HERRERA, JR.; LAURENCE R. SUNDERLAND; 

ALFRED S. VASSER; MICHAEL G. CRAVEY; RITCHIE BROWN; MILAS E. 

WILLIAMS; JACOB JACKSON; RODERICK WOODARD; GAVINO J. ALEMAN;

DONNELL GUYTON; FRANK GONZALES; WAYLON J. HARRIS; FLOYD 

EDWARD HENRY; NARVAIS JOE; ROBERT CERDA; DOUGLAS BRYANT; 

CURTIS MCHENRY; CASTILLO REYNALDO; ERICK DESHAWN EDWARDS; 

LESTER RAY HARRIS; RODERICK CALVIN; CEASAR DANIEL; PATRICK 

DENLEY; THOMAS S. COOK; RUDY VALDERAS; RUDOLPHO GONZALES; 

CLAUD SISK, 

Plaintiffs-Appellants,

versus

GARY JOHNSON; JAMES DUKE; EDDIE PIGG,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:04-CV-116-C

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Arnold Ray Reed, Texas prisoner number 1205652, and 27 other

Texas prisoners filed a pro se civil rights complaint,

complaining about the conditions of confinement. They moved

pursuant to FED. R. CIV. P. 23 to have the case certified as a
No. 04-10700

-2-

class action and have class counsel appointed. The district

court, inter alia, denied the class certification and the request

for the appointment of counsel. Reed now appeals.

As a preliminary matter, we note that although all 28

plaintiffs were named in the original notice of appeal, only Reed

signed the notice. The clerk of this court notified the

remaining 27 plaintiffs about the defect, but none of them

evinced an intent to appeal by signing a new notice of appeal. 

Therefore, Reed is the only party to the instant appeal. See

Wash v. Johnson, 343 F.3d 685, 687-89 (5th Cir. 2003).

Reed argues conclusionally that the requirements have been

met for class certification and that therefore class counsel

should have been appointed. The class certification decision is

not properly before us because the district court’s order, which

is interlocutory in nature, does not satisfy 28 U.S.C. § 1292(b)

and Reed did not make application to this court to appeal the

certification decision within ten days after entry of the order. 

See Chevron USA, Inc. v. School Bd. Vermillion Parish, 294 F.3d

716, 720 (5th Cir. 2002); FED. R. CIV. P. 23(f). 

To the extent Reed’s brief may be liberally construed to

seek review of the district court’s denial of the appointment of

counsel for him individually, that interlocutory order is

appealable. See Marler v. Adonis Health Prods., 997 F.2d 1141,

1142 (5th Cir. 1993); Robbins v. Maggio, 750 F.2d 405, 412-13

(5th Cir. 1985). However, Reed has not shown that exceptional
No. 04-10700

-3-

circumstances warrant the appointment of counsel. See Ulmer v.

Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). Therefore, the

district court’s denial of the request for appointment of counsel

was not an abuse of discretion. See Jackson v. Dallas Police

Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). 

The appeal is without arguable merit and is DISMISSED AS

FRIVOLOUS. See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2. Reed is CAUTIONED that the dismissal of

this appeal as frivolous counts as a strike under 28 U.S.C. 

§ 1915(g) and that if he accumulates three strikes, he will not

be able to proceed in forma pauperis (“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 Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).

APPEAL DISMISSED; SANCTION WARNING ISSUED.