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 2021-06

Brown v. Orleans Parish Sheriff ( 2021 )


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  • Case: 19-30922     Document: 00515888936          Page: 1    Date Filed: 06/07/2021
United States Court of Appeals
for the Fifth Circuit                               United States Court of Appeals
Fifth Circuit
FILED
June 7, 2021
No. 19-30922
Lyle W. Cayce
Clerk
Jarvis Brown,
Plaintiff—Appellant,
versus
Orleans Parish Sheriff Office; Marlin N. Gusman,
Sheriff; Orleans Parish District Attorney’s Office; Leon
A. Cannizzaro, Jr., District Attorney; New Orleans Police
Department; Ronald Serpas, New Orleans Police Department Chief;
H. Cantrell, Orleans Parish Criminal Court Magistrate Judge; et al.,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-12432
Before Jones, Costa, and Wilson, Circuit Judges.
Per Curiam:*
Jarvis Brown, Louisiana prisoner # 710737, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-30922      Document: 00515888936           Page: 2     Date Filed: 06/07/2021
No. 19-30922
dismissal of his pro se
    42 U.S.C. § 1983
     complaint as frivolous. By moving
to proceed IFP in this court, Brown challenges 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. 1997). Our inquiry “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
quotation marks and citations omitted).
With the benefit of liberal construction, Brown’s arguments that he is
financially eligible, that he is illegally imprisoned, and that he is being denied
access to the courts in this appeal fail to demonstrate a nonfrivolous issue for
appeal with respect to the district court’s dismissal of his complaint and
denial of injunctive relief pursuant to Heck v. Humphrey,
    512 U.S. 477
     (1994).
See Clarke v. Stalder,
    154 F.3d 186
    , 189-91 (5th Cir. 1998) (en banc); Hamilton
v. Lyons,
    74 F.3d 99
    , 102 (5th Cir. 1996). He has abandoned any claims raised
in objections to the report and recommendations. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
Accordingly, Brown has failed to show that his appeal involves any
arguably meritorious issues. See Howard,
    707 F.2d at 220-21
    . His IFP motion
is therefore DENIED and the appeal is DISMISSED as frivolous. See
Baugh,
    117 F.3d at 
    202 & n.24; 5th Cir. R. 42.2.
This dismissal and the dismissal of Brown’s complaint in the district
court count as strikes under
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996), abrogated in part on other grounds by Coleman
v. Tollefson,
    575 U.S. 532
    , 537 (2015). Brown is WARNED 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 of serious physical injury. See § 1915(g).
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