Meika Britton v. Southaven Police Department, et a ( 2018 )


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  •      Case: 17-60432      Document: 00514409845         Page: 1    Date Filed: 04/02/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-60432
    Fifth Circuit
    FILED
    April 2, 2018
    MEIKA DESEAN BRITTON,                                                    Lyle W. Cayce
    Clerk
    Plaintiff-Appellant
    v.
    SOUTHAVEN POLICE DEPARTMENT; BRENNON RUSHING, Detective
    Southaven Police Department; STEVE PIRTLE, Chief of Police; FRANK
    CASWELL, Probation Officer; BONITA CLARK, Probation Officer Supervisor;
    GERALD W. CHATHAM, SR., Circuit Court Judge; ROBERT REID
    MORRIS, III, Assistant District Attorney; MARSHALL FISHER, Mississippi
    Department of Corrections; CITY OF SOUTHAVEN,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 3:16-CV-84
    Before SMITH, ELROD, and HO, Circuit Judges.
    PER CURIAM: *
    Meika Desean Britton, Mississippi prisoner # 167394, moves for leave to
    appeal in forma pauperis (IFP) from the district court’s order granting
    summary judgment, dismissing his 42 U.S.C. § 1983 claims against Mississippi
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60432    Document: 00514409845     Page: 2   Date Filed: 04/02/2018
    No. 17-60432
    Department of Corrections employees Frank Caswell and Bonita Clark and
    against Southaven Police Detective Brennon Rushing. By moving to proceed
    IFP, Britton challenges the district court’s determination that his appeal has
    not been brought in good faith. See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th
    Cir. 1997). This court’s inquiry into an appellant’s 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).
    Urging that the summary judgment dismissal was error, Britton
    complains that he was denied the opportunity to conduct discovery and
    conclusionally asserts that material factual disputes precluded summary
    judgment. However, he does not challenge any legal aspect of the district
    court’s disposition of his claims against Caswell and Clark, specifically failing
    to brief any argument challenging the district court’s determination that he
    had not exhausted his administrative remedies prior to filing suit, as required
    by 42 U.S.C. § 1997e.    He has therefore abandoned any challenge to the
    dispositive issue for appeal with respect to those defendants. See Yohey v.
    Collins, 
    985 F.2d 222
    , 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy
    Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir. 1987).
    With respect to Rushing, Britton renews his claim that the warrantless
    search and seizure of his cellphone violated his Fourth Amendment rights.
    Although he urges that there was a material factual dispute concerning
    whether probable cause existed for the search, because Britton was on post-
    release supervision, probable cause was not required. See United States v.
    Knights, 
    534 U.S. 112
    (2001); United States v. Keith, 
    375 F.3d 346
    (5th Cir.
    2004). Additionally, Britton complains that the search in his case was not a
    true probationer search because his conditions of supervision did not authorize
    2
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    No. 17-60432
    it. The argument is meritless. See 
    Keith, 375 F.3d at 350
    ; Barlow v. State,
    
    8 So. 3d 196
    , 202 (Miss. Ct. App. 2008).
    Britton briefs no argument challenging the district court’s determination
    that the undisputed facts showed that Rushing had the requisite reasonable
    suspicion for the warrantless search of his cellphone based on the information
    received from a concerned father who had seen inappropriate and provocative
    text messages between Britton, a sex offender previously convicted of child
    exploitation, and a teenaged girl. He has thus abandoned any such challenge.
    See 
    Yohey, 985 F.2d at 224-25
    ; 
    Brinkmann, 813 F.2d at 748
    . Even had he
    briefed the argument, Britton could not show that the search of his cellphone
    was impermissible under either state or federal law. See 
    Keith, 375 F.3d at 350
    ; 
    Barlow, 8 So. 3d at 202
    .
    Thus, Britton fails to demonstrate that his appeal raises a nonfrivolous
    issue. 
    Howard, 707 F.2d at 220
    . Accordingly, the motion for 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 motion for the appointment of counsel is similarly denied.
    The dismissal of the instant appeal as frivolous counts as a strike for
    purposes of 28 U.S.C. §1915(g). See Adepegba v. Hammons, 
    103 F.3d 383
    , 387-
    88 (5th Cir. 1996). Britton is cautioned that if he accumulates three strikes
    under § 1915(g), 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).
    IFP MOTION DENIED; APPEAL DISMISSED; MOTION FOR THE
    APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.
    3