* 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should not be published and is not precedent except under the limited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. 07-20660

Conference Calendar

ALFRED LEE BRANUM

Plaintiff-Appellant

v.

EUGENE JOSEPH FONTENOT, JR

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-2077

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Alfred Lee Branum, Texas prisoner # 286354, seeks leave to proceed in

forma pauperis (IFP) on appeal of the district court’s dismissal as malicious of

his civil action. By moving for leave to proceed IFP, Branum 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).

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-20660

2

Branum does not challenge the district court’s certification that his appeal

is not taken in good faith. Instead he argues that the Constitution requires that

he be granted leave to proceed IFP on appeal because he does not have the

money to pay the appellate filing fee. 

There is no constitutional right to proceed in a civil action without paying

the proper filing fee; the ability to proceed IFP is a privilege that may be

extended or withdrawn. Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir. 1997).

Accordingly, Branum’s assertion that the good faith certification requirement

violates his constitutional rights is without merit. See id. at 290-91. As Branum

does not challenge the district court’s certification that his appeal is not taken

in good faith, he has waived any such challenge. See Brinkmann v. Dallas

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

Branum argues thatthe district courtimproperly required that he pay the

$455 appellate filing fee in installments while simultaneously denying him leave

to proceed IFP on appeal. However, “the plain language of [§ 1915(b)(1)]

requires that appellate fees be assessed at the moment the appeal is filed,

regardless of whether the appeal is later dismissed.” Williams v. Roberts, 116

F.3d 1126, 1128 (5th Cir. 1997). Accordingly, the district court did not err by

ordering that the appellate filing fee be taken from Branum’s prison trust

account in installments pursuant to § 1915(b). See id.; Baugh, 117 F.3d at 202

& n.22.

Branum’s appeal is without arguable merit and is frivolous. See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the

appeal is dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.

Both this court’s dismissal of the instant appeal and the district court’s

dismissal of Branum’s complaint count as strikes for purposes of § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). During the pendency

of this appeal, this court imposed the § 1915(g) bar against Branum. See

Branum v. Johnson, 265 F. App’x 349, 350 (5th Cir. 2008). Branum is
No. 07-20660

3

admonished that he may not proceed 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.” § 1915(g). 

IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR

REMAINS IN EFFECT.