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Christopher Cobos v. Ector County Courthouse ( 2017 )


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  •      Case: 16-50072      Document: 00513968733         Page: 1    Date Filed: 04/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50072                               FILED
April 26, 2017
Lyle W. Cayce
Clerk
CHRISTOPHER MICHAEL COBOS,
Plaintiff–Appellant,
versus
MARK DONALDSON, Ector County Sheriff,
Defendant–Appellee.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:15-CV-105
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Christopher Cobos, Texas prisoner # 2032199, moves for leave to proceed
in forma pauperis (“IFP”) to appeal the dismissal of his 42 U.S.C. § 1983 civil
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-50072
rights complaint. The district court denied Cobos’s motion to proceed IFP,
certifying that the appeal was not taken in good faith. By moving in this court
for IFP status, Cobos is challenging that certification. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
Cobos contends that the district court impermissibly denied him the
opportunity to amend his complaint after a motion to dismiss had been filed.
The court, however, gave Cobos the chance to present his best case; the court
identified deficiencies in Cobos’s initial complaint, ordered him to file a more
definite statement, then granted his motion to amend. See Eason v. Thaler,
    14 F.3d 8
    , 9 (5th Cir. 1994). Cobos did not seek to amend again after the motion
to dismiss had been submitted. Moreover, Cobos complains that he was not
served with one of the court’s orders, which, he maintains, resulted in dismis-
sal, but he does not explain how the case would have turned out differently had
he received proper notice.
In his motion, Cobos does not address the district court’s reasons for the
certification decision, namely, that Cobos failed to state a claim for relief and
that the defendant was entitled to qualified immunity. See
    Baugh, 117 F.3d at 202
    . Thus Cobos has abandoned his challenge to the certification decision.
See Brinkmann v. Dallas Cty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir.
1987).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Because it is frivolous, it is
DISMISSED. See 5TH CIR. R. 42.2. Cobos’s motions for permission to proceed
IFP and for the appointment of counsel are DENIED. The dismissal of the
complaint and the appeal both count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).
Cobos is WARNED that if he accumulates a third strike, he will not be allowed
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Case: 16-50072    Document: 00513968733    Page: 3   Date Filed: 04/26/2017
No. 16-50072
to proceed IFP in any civil action or appeal while incarcerated or detained in
any facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
3