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Dickson v. Garland ( 2023 )


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  • Case: 22-60503        Document: 00516637805             Page: 1      Date Filed: 02/07/2023
United States Court of Appeals
for the Fifth Circuit
____________                             United States Court of Appeals
Fifth Circuit
FILED
No. 22-60503                             February 7, 2023
____________
Lyle W. Cayce
Clerk
Bryan Kerr Dickson,
Plaintiff—Appellant,
versus
Merrick Garland, U.S. Attorney General; William Barr,
Attorney General of the United States; Colette S. Peters, Director of the
Federal Bureau of Prisons; Hugh Horwitz, Director of the Federal Bureau
of Prisons; Kathleen Hawk Sawyer, Director of the Bureau of Prisons;
Et al.
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CV-735
______________________________
Before Higginbotham, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Bryan Kerr Dickson, federal prisoner # 39172-177, has filed a motion
to proceed in forma pauperis (IFP) in this appeal from the dismissal of his
civil rights complaint. Dickson’s IFP motion challenges the district court’s
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60503      Document: 00516637805           Page: 2    Date Filed: 02/07/2023
No. 22-60503
determination that the appeal is not taken in good faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). This court’s 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) (citation omitted).
The district court dismissed Dickson’s civil action without prejudice
on grounds that Dickson had failed to comply with court orders and had failed
to prosecute his action. In his IFP motion and incorporated brief, Dickson
argues only that he has been allowed to procced IFP in other cases and that
he has not accumulated three strikes under
    28 U.S.C. § 1915
    (g); thus, he
asserts that he should be allowed to proceed IFP in the instant matter.
Because Dickson fails to brief a challenge to the district court’s reasons for
dismissing his civil rights action, the relevant issues are abandoned. See Yohey
v. Collins,
    985 F.2d 222
    , 225 (5th Cir. 1993); Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987).
Dickson fails to make the requisite showing that he has a nonfrivolous
issue for appeal. See Howard,
    707 F.2d at 220
    . Accordingly, his motion to
proceed IFP is DENIED, and his appeal is DISMISSED as 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 under
§ 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). As discussed by the district court, Dickson has two previous strikes.
He incurred his first strike as the result of consolidated civil actions filed in
the United States District Court for the Northern District of Texas, which
dismissed his claims as frivolous or malicious and for failure to state a claim.
Dickson v. City of Mansfield, Tex., No. 4:11-cv-469 c/w No. 4:11-cv-499 (N.D.
Tex. Apr. 9, 2012). A portion of that civil action was transferred to the
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No. 22-60503
United States District Court for the Western District of Oklahoma, which
dismissed the action because Dickson failed to state a claim on which relief
could be granted. Dickson v. Warden, FTC, No. 5:12-cv-384 (W.D. Okla. May
15, 2012). Dickson accrued another strike as the result of the dismissal, as
frivolous, of his appeal of a civil rights action in the Ninth Circuit. See Dickson
v. United States, No. 16-56864 (9th Cir. July 26, 2017).
Because he has now accumulated at least three strikes, Dickson is
BARRED from proceeding IFP in any civil action or appeal filed while he is
incarcerated or detained unless he is under imminent danger of serious
physical injury. See § 1915(g); McGarrah v. Alford,
    783 F.3d 584
    , 585 (5th
Cir. 2015).
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