Jerry Simmons v. LA Dept of Pub Sfty and Corr ( 2019 )

Case: 19-30178 Document: 00515243516 Page: 1 Date Filed: 12/19/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2019
No. 19-30178 Lyle W. Cayce
Clerk
JERRY SIMMONS,
Plaintiff-Appellant
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:17-CV-1396
Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
Jerry Simmons, Louisiana prisoner # 593386, moves to proceed in forma
pauperis (IFP) in his appeal of the district court’s order dismissing his civil
rights complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A as frivolous and
for failure to state a claim. His motion to proceed IFP on appeal is construed
as a challenge to 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).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-30178 Document: 00515243516 Page: 2 Date Filed: 12/19/2019
No. 19-30178
To proceed IFP, Simmons must be economically eligible and his appeal
must not be frivolous. See FED. R. APP. P. 24(a)(5); Carson v. Polley, 689 F.2d
562, 586 (5th Cir. 1982). Because Simmons’s economic eligibility to proceed
IFP is not in question, the question is whether he has shown that his appeal
presents a nonfrivolous issue. Carson, 689 F.2d at 586.
Though Simmons argues that the district court has denied him access to
the courts in violation of the First Amendment and has discriminated against
him because he is a pauper in violation of the Fourteenth Amendment by
denying his IFP motion, he does not otherwise challenge the district court’s
analysis of his constitutional claims under 42 U.S.C. § 1983. Although pro se
briefs are afforded liberal construction, arguments must be briefed in order to
be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even
when his brief is liberally construed, Simmons has failed to identify a
nonfrivolous issue for appeal with respect to any of his § 1983 claims.
See Carson, 689 F.2d at 586.
Because Simmons has failed to show that he will raise a nonfrivolous
issue on appeal, his IFP motion is DENIED and his appeal is DISMISSED.
See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The dismissal of this
appeal as frivolous as well as the district court’s dismissal of his complaint as
frivolous both count as strikes for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Simmons 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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