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Esaw Lampkin v. Bobby Dean ( 2018 )


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  •      Case: 17-40107      Document: 00514431076         Page: 1    Date Filed: 04/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40107                              FILED
April 16, 2018
Lyle W. Cayce
ESAW LAMPKIN,                                                                   Clerk
Plaintiff-Appellant
v.
BOBBY DEAN; JOE CASSIN; DON LEACH; BRANDON T. WINN; KAREN
REAM,
Defendants-Appellees
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:15-CV-496
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Esaw Lampkin, Texas prisoner # 1912325, moves for leave to proceed in
forma pauperis (IFP) on appeal from the judgment dismissing his
    42 U.S.C. § 1983
     claims against the defendants. The district court denied IFP status
upon certifying that Lampkin’s appeal is not taken in good faith. See Baugh v.
Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). We deny the motion to proceed IFP
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40107    Document: 00514431076     Page: 2   Date Filed: 04/16/2018
No. 17-40107
and dismiss Lampkin’s appeal as frivolous. See Howard v. King,
    707 F.2d 215
    ,
220 (5th Cir. 1983); Baugh,
    117 F.3d at 
    202 & n.24.
By moving in this court to proceed IFP, Lampkin challenges the district
court’s certification that his appeal is not taken in good faith. See Baugh,
    117 F.3d at 202
    . A good faith appeal is one that “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 citation omitted).
Lampkin’s cursory IFP motion fails to make the requisite showing. In
fact, aside from flatly declaring that his claims are not frivolous, he offers no
actual argument to that end. Lampkin’s failure to brief the IFP issue is the
same as if he had not appealed the judgment at all. See Brinkmann v. Dallas
County Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). As a result,
he has waived any challenge to the district court’s IFP ruling and, thus, cannot
show that the court’s certification was an abuse of its discretion. See Hughes
v. Johnson,
    191 F.3d 607
    , 612-13 (5th Cir. 1999); Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982). And because Lampkin, by failing to brief the issue,
does not rebut the finding that his appeal lacks arguable merit, we conclude
that it is frivolous. See Baugh,
    117 F.3d at 
    202 & n.24; 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike against
Lampkin under
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    ,
385-87 (5th Cir. 1996). Lampkin has previously filed at least one other civil
action that was also dismissed as frivolous, which counts as a second strike for
purposes of § 1915(g). Lampkin 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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Case: 17-40107   Document: 00514431076   Page: 3   Date Filed: 04/16/2018
No. 17-40107
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
APPELLANT WARNED.
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