* 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should not be published and is not precedent except under the limited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. 07-20093

Conference Calendar

ALFRED LEE BRANUM

Plaintiff-Appellant

v.

GARY L JOHNSON, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JANIE COCKRELL,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION; CHIS CARTEA; ROBERT KOENIG; FRANK

ROSENQUEST; WARDEN EDUARDO CORMONA; ASSIST WARDEN

MICHAEL HALL

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CV-3515

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Alfred Lee Branum, Texas prisoner # 286354, and a co-plaintiff brought

the present civil action as a putative class action pursuant to 42 U.S.C. § 1983

and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. The district

United States Court of Appeals

Fifth Circuit

F I L E D

December 11, 2007

Charles R. Fulbruge III

Clerk
No. 07-20093

2

court dismissed the case as frivolous. Branum seeks leave to proceed in forma

pauperis (IFP) on appeal of the district court’s denial of his motion for extension

of time to file a notice of appeal and motions to reopen the time to file an appeal.

By moving for leave to proceed IFP, Branum is challenging the district court’s

certification that his appeal is nottaken 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).

Branum argues that correspondence that he sentto this court should have

been construed as a timely motion to reopen the time to file an appeal. He

additionally asserts that his motions should have been granted because he is a

layman untrained in law and because he has difficulty moving around the prison

law library because he is wheelchair bound.

As Branum did not file anything that could be reasonably construed as a

motion for extension of time to file a notice of appeal within 30 days of the

expiration of the time to file a timely notice of appeal, the district court’s denial

of his motion for extension of time to file a notice of appeal does not present a

nonfrivolous issue for appeal. See FED. R. APP. P. 4(a)(5)(A)(i). As Branum did

not file anything, including his correspondence to this court, that could be

reasonably construed as a motion to reopen the time to file an appeal within 180

days of the entry of judgment, the district court’s denial of his motions to reopen

the time to file an appeal does not present a nonfrivolous issue for appeal. See

FED. R. APP. P. 4(a)(6)(B).

Branum’s argument that his motions should have been granted because

he is an untrained layman who has difficulty moving around the prison library

invokes the doctrine of equitable tolling. Assuming arguendo that equitable

tolling is applicable, Branum has not shown the existence of a nonfrivolous issue

for appeal because he has not shown the existence of the rare and exceptional

circumstances necessary to justify equitable tolling. See Felder v. Johnson, 204

F.3d 168, 171 (5th Cir. 2000). To the extent that Branum’s argument challenges
No. 07-20093

3

the denial of his motion for appointment of counsel, it also does not present a

nonfrivolous issue for appeal because Branum has not shown the exceptional

circumstances necessary to require the appointment of counsel. See Ulmer v.

Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).

The IFP motion is denied, and the appeal is dismissed as frivolous. See

Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. Branum is cautioned that the

dismissal of this appeal as frivolous and the district court’s dismissal of the

complaint as frivolous both count as strikes under 28 U.S.C. § 1915(g). See

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

thatif he accumulates three strikes under § 1915(g), he will be unable to 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. See

§ 1915(g).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.