Kenneth Justice v. Loren Jackson ( 2013 )

Case: 12-20118 Document: 00512317974 Page: 1 Date Filed: 07/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2013
No. 12-20118
Summary Calendar Lyle W. Cayce
Clerk
KENNETH JUSTICE,
Plaintiff-Appellant
v.
LOREN JACKSON, District Clerk of Harris County, Texas,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-3661
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Kenneth Justice, Texas prisoner # 1337192, moves this court for leave to
proceed in forma pauperis (IFP) in his appeal from the district court’s dismissal
of his complaint filed pursuant to 42 U.S.C. § 1983. In his complaint, Justice
argued that the District Clerk of Harris County, Texas, violated his rights to
investigate and develop his habeas claims, to access the courts, and to petition
for a redress of grievances when the Clerk denied Justice’s request for copies of
court records pertaining to two of Justice’s criminal convictions. He further
alleged a denial of due process, and he sought a declaration that § 552.028 of the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20118 Document: 00512317974 Page: 2 Date Filed: 07/23/2013
No. 12-20118
Texas Government Code (the statute cited by the Clerk for denying Justice’s
request), as applied, was unconstitutional.
The district court may deny a motion for leave to appeal IFP by certifying
that the appeal is not taken in good faith and by providing written reasons for
the certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED.
R. APP. P. 24(a). If a prisoner opts to challenge the district court’s certification
decision, the prisoner may file a motion in the court of appeals for leave to
proceed IFP, which “must be directed solely to the trial court’s reasons for the
certification decision.” See Baugh, 117 F.3d at 202.
Justice’s complaint was dismissed because his claims were legally
frivolous, but he fails to address or challenge the reasons given by the district
court for dismissing his complaint. Although pro se briefs are afforded liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants
must brief arguments in order to preserve them, Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). By failing to brief an argument challenging the basis of
the district court’s dismissal of his complaint, Justice has waived any such
challenge on appeal. See id.; Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Accordingly, he has not demonstrated that the
district court’s dismissal of his complaint as frivolous was an abuse of discretion.
See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). His motion is therefore
DENIED, and his appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2.
We WARN Justice that the dismissal of his suit by the district court and
the dismissal of this appeal count as strikes pursuant to 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We further warn
him that if he accumulates three strikes under § 1915(g), 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).
2