* 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should not be published and is not precedent except under the limited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

August 21, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41540

Conference Calendar

WESLEY RAY ROGERS

Plaintiff-Appellant

v.

JOHN ROACH, Collin County District Attorney; JESSIE ALLEN, Assistant

District Attorney; FNU BREY, Assistant District Attorney; JUDGE BETTY

CATON, Judge

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:06-CV-95

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Wesley Ray Rogers, Texas prisoner # 1363214, moves this court for

permission to appeal in forma pauperis (IFP) from the dismissal of a civil rights

complaint alleging that Rogers’s conviction for driving while intoxicated was the

result of prosecutorial misconduct and judicial bias. Rogers moves for

appointment of appellate counsel, and he requests that this court hold the
No. 06-41540

2

appeal in abeyance. Appellees Roach, Allen, and Brey have moved to strike

Rogers’s motion and brief, to dismiss the appeal, and for entry of an award of

attorneys fees. 

The district court denied Rogers’s IFP motion and certified thatthe appeal

was not taken in good faith. By moving for IFP, Rogers is challenging the

district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997). Rogers argues that the district court failed to recognize that his

conviction violated theFifth Amendment;thatthe defendants “hoodwinked”the

district court by misrepresenting Rogers’s claims; and thatthe denial of IFP will

cause Rogers to suffer extreme financial hardship. 

Rogers has not shown that the district court erred in determining that his

appeal would be frivolous. He has failed to brief a challenge to the basis for the

district court’s denial of IFP, and any such argumentis not preserved. SeeYohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The instant appeal is without

arguable merit and is thus frivolous. Accordingly, Rogers’s motions to proceed

IFP on appeal and for appointment of counsel are denied, his motion to hold the

appeal in abeyance is denied as moot,the appellees’ motion to dismiss the appeal

is denied as moot, and the appeal is dismissed. See Howard v. King, 707 F.2d

215, 219-220 (5th Cir. 1983); 5TH CIR. R. 42.2. The appellees’ motion to strike is

denied as moot and their motion for attorneys fees is denied. 

The district court’s dismissal of Rogers’s complaint and this court’s

dismissal of his appeal count as two strikes under 28 U.S.C. § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Rogers also

accumulated a strike in Rogers v. Young, No. 3:95-CV-524 (N.D. Tex. Apr. 26,

1995). As Rogers has now accumulated at least three strikes, he is barred from

proceeding IFP pursuant to § 1915 while he is incarcerated or detained in any

facility unless he is under imminent danger of serious physical injury. See

§ 1915(g).
No. 06-41540

3

IFP DENIED; APPEAL DISMISSED; ALL OTHER MOTIONS DENIED;

28 U.S.C. § 1915(g) BAR IMPOSED.