### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 40966

ROCCO FUNARI , Plaintiff

- Appellant

v. JASON SMITH, Correctional Officer at Telford Unit; BRIAN NICHOLS, Correctional Officer at Telford Unit; BILLY TAYLOR, Correctional Officer at Telford Unit; RICHARD SMITH, Correctional Officer at Telford; STEPHANIE COPPEDGE, Correctional Officer at Telford; KEN PAXTON, Attorney General, State of Texas , Defendant s
- Appellee s

Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:13

- CV

- 8

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Rocco Funari, Texas prisoner # 1027893, moves this court for authorization to proceed in forma pauperis (IFP) in an appeal from the dismissal of his 42 U.S.C. § 1983 complaint following a jury verdict in favor of the defendants. The magistrate judge (MJ) denied Funari’ s motion for leave

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 23, 2016 Lyle W. Cayce Clerk Case: 15-40966 Document: 00513691004 Page: 1 Date Filed: 09/23/2016No. 15

- 40966

2 to proceed IFP on appeal and certified that the appeal was not taken in good faith. By moving to proceed IFP, Funari is challenging the MJ ’s certification that his appeal is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197,
2 02 (5th Cir. 1997)

. Our inquiry into whether the appeal is taken in good faith “is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983) (internal qu otation marks and citation omitted). Funari argues that the jury verdict should be overturned because the jury relied on the defendants’ testimony to deny his claims instead of relying

on his testimony , which fully supported his claims

. Funari’s challenge to the weight and credibility of the evidence is not a proper issue for appellate review. See Martin v. Thomas , 973 F.2d 449, 453 (5th Cir. 1992). Funari’s argument that the verdict should be overturned because his attorneys were ineffective
will not be considered by this court

. S ee S anchez v. United States Postal Serv. , 785 F.2d 1236, 1237 (5th Cir. 1986).
Funari’s appeal is without arguable merit and is thus frivolous. See
Howard , 707 F.2d at 219

- 20. His IFP motion is therefore denied, and his

ap pe al is dismissed as frivolous. See Baugh , 117 F.3d at 202 & n.24; 5 TH C IR

. R . 42.2. This court’s dismissal of Funari’s appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 388 (5th Cir. 1996). Funari is cautioned that if he accumulates three strikes, he will not be able 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 o f serious physical injury. See § 1915(g). MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED. Case: 15-40966 Document: 00513691004 Page: 2 Date Filed: 09/23/2016