Jamonte Davis v. Burl Cain ( 2012 )

Case: 12-30697 Document: 00512062408 Page: 1 Date Filed: 11/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 26, 2012
No. 12-30697
Summary Calendar Lyle W. Cayce
Clerk
JAMONTE DAVIS,
Plaintiff-Appellant
v.
BURL CAIN; MIKE JANNADY; CATHY FONTENOT; TRISH FOSTER; M.
PIAZZA; D. CAVALIER; S. SCALES; BARTON TRENT; UNKNOWN BUTLER;
RUSTY BORDELEON; JOE JONES; UNKNOWN SMITH,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CV-789
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jamonte Davis, Louisiana prisoner # 420744, 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, Davis
argued that prison officials violated his constitutional rights when they falsely
convicted him on a disciplinary charge, placed him in Camp J at the Louisiana
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30697 Document: 00512062408 Page: 2 Date Filed: 11/26/2012
No. 12-30697
State Penitentiary, and delayed in investigating his case and responding to his
complaints.
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. The district court adopted
the findings and conclusions of the magistrate judge and dismissed Davis’s
complaint as frivolous. Thus, we review the dismissal for an abuse of discretion.
Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
Davis’s complaint was dismissed after a determination that his claims
were legally frivolous. Davis fails to address or challenge the reasons given by
the magistrate judge and 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, Davis has waived any such challenge on appeal. See Yohey, 985 F.2d
at 224-25; 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, and his appeal
is dismissed as frivolous. See 5TH CIR. R. 42.2.
Davis is cautioned 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). He is further
cautioned that if he accumulates three strikes under § 1915(g), he will not be
able to proceed in forma pauperis in any civil action or appeal filed while he is
2
Case: 12-30697 Document: 00512062408 Page: 3 Date Filed: 11/26/2012
No. 12-30697
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.
3