* 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should not be published and is not precedent except under the limited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. 08-50177

Summary Calendar

NICKOLAS ANTONIOUS MELLS

Plaintiff-Appellant

v.

CIVIGENICS INC; FEDERAL BUREAU OF PRISONS; REGIONAL DIRECTOR

RONALD THOMPSON; WARDEN MICKEY HUBERT; SERGEANTFNU LEE

Defendants-Appellees

Appeal from the United States District Court

for Western the District of Texas

USDC No. 6:07-CV-192

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Nickolas Antonious Mells, federal prisoner # 82279-080, moves this court

for leave to proceed in forma pauperis (IFP) in this appeal from the district

court’s granting of the “Civigenics Defendants’ Motion to Dismiss Plaintiff’s

Second Amended Complaint for Failure to State a Claim, or, Alternatively,

Motion for Summary Judgment” and the dismissal of his civil rights suit against

those defendants for failure to state a claim. The district court denied Mells’s

United States Court of Appeals

Fifth Circuit

F I L E D

October 3, 2008

Charles R. Fulbruge III

Clerk
No. 08-50177

2

request to proceed IFP on appeal, certifying that the appeal was not taken in

good faith. Mells’s IFP motion is a challenge to the district court’s certification

that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,

202 (5th Cir. 1992).

The district court found that Mells had failed to exhaust his

administrative remedies with respect to his claims that he was denied his right

to exercise his religion and that he was denied access to a law library. The

district court also found that Mells was not entitled to relief under any set of

facts or any possible theory that he could prove consistent with the allegations

in his complaint and that no rational trier of fact could find for Mells.

Mells argues that the district court erred in finding that he failed to

exhaust his administrative remedies. He also argues that the district court

erred in dismissing his lawsuit for failure to state a claim upon which relief

could be granted because he did raise a valid free exercise of religion claim.

Because he does not address his claim that he was denied access to a law library,

that claim has been abandoned. See Brinkmann v. Dallas County DeputySheriff

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

Because Mells did not correctly complete both steps of the prison grievance

process with respect to his claim that he was denied his right to exercise his

religion, he did not exhaust his administrative remedies. See Woodford v. Ngo,

126 S. Ct. 2378, 2382 (2006). Accordingly, Mells has not shown that he will

present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983). His motion for leave for IFP is denied, and the appeal is

dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.

Our dismissal of this appeal as frivolous counts as a strike for purposes of

28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996). Mells is warned that if he accumulates three strikes, he will be barred

from proceeding IFP pursuant to §1915(g) while he is incarcerated or detained
No. 08-50177

3

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

See § 1915(g).

MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.