eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2018-12

Rogers Atkins v. Morehouse Parish ( 2018 )


Menu:
 
  •      Case: 18-30487      Document: 00514753606         Page: 1    Date Filed: 12/10/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30487                       December 10, 2018
Lyle W. Cayce
Clerk
ROGERS V. ATKINS,
Plaintiff−Appellant,
versus
DISTRICT ATTORNEY MOREHOUSE PARISH; EDDIE H. DELAMAR;
LORI LAINY; GRACIE PITTMAN DRUMMOND; R.W. KOSTELKA;
SHERIFF’S OFFICE MOREHOUSE PARISH; LORI LAING;
ALLEN HARVEY; PARISH OF MOREHOUSE,
Defendants−Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:17-CV-1514
Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
Rogers Atkins, Louisiana prisoner #101861, moves to proceed in forma
pauperis (“IFP”) on appeal. He filed a
    42 U.S.C. § 1983
     complaint against
numerous defendants alleging that their fraudulent acts and omissions during
his criminal trial in 1983 violated his constitutional rights. The district court
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-30487     Document: 00514753606      Page: 2   Date Filed: 12/10/2018
No. 18-30487
dismissed the action sua sponte as frivolous and for failure to state a claim
under
    28 U.S.C. § 1915
    (a)(3) because it was barred by the Louisiana one-year
prescriptive period. The court also denied Atkins’s motion for leave to proceed
IFP on appeal and certified that his appeal was not taken in good faith.
By moving to proceed IFP, Atkins is challenging the good-faith certify-
cation. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). Our inquiry
into 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 quotation marks and citation omitted). We may
dismiss the appeal if it is apparent that it is frivolous. See Baugh,
    117 F.3d at 
    202 n.24.
In his appellate brief, Atkins focuses on his financial eligibility to proceed
IFP and does not identify any error in the dismissal as time-barred. Conse-
quently, he has failed to brief the only relevant issue. See Cinel v. Connick,
    15 F.3d 1338
    , 1345 (5th Cir. 1994). Thus, he also has not shown that the appeal
involves “legal points arguable on their merits (and therefore not frivolous).”
Howard,
    707 F.2d at 220
    . Accordingly, the motion to proceed IFP is DENIED,
and the appeal is DISMISSED as frivolous. See Baugh,
    117 F.3d at 
    202 n.24;
5TH CIR. R. 42.2.
The dismissal of Atkins’s complaint as frivolous and the dismissal of this
appeal as frivolous count as strikes for purposes of § 1915(g). See Coleman v.
Tollefson,
    135 S. Ct. 1759
    , 1763 (2015). Atkins is also cautioned that once he
accumulates three strikes, he will not be allowed 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).
2