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Howard v. Lumpkin ( 2022 )


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  • Case: 21-11283       RESTRICTED Document: 00516572813                  Page: 1     Date Filed: 12/09/2022
United States Court of Appeals.
for the Fifth Circuit                                    United States Court of Appeals
Fifth Circuit
FILED
No. 21-11283                           December 9, 2022
Summary Calendar                           Lyle W. Cayce
Clerk
Eddy James Howard,
Plaintiff—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-2311
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Eddy James Howard, Texas prisoner # 1859038, filed a pro se
mandamus petition naming as respondent a state official and alleging that no
action had been taken upon various state court filings he had made. The
district court dismissed the petition as frivolous and for failure to state a claim
on the ground that federal courts are unable to issue writs of mandamus
*
This opinion is not designated for publication. See 5th Circuit Rule 47.5.
Case: 21-11283    RESTRICTED Document: 00516572813               Page: 2     Date Filed: 12/09/2022
No. 21-11283
directing state officials in the performance of their duties where mandamus
is the only relief sought. Howard appeals the dismissal.
Because the district court denied Howard leave to proceed in forma
pauperis (IFP) on appeal, certifying that the appeal was not taken in good
faith, his pending motion for IFP status constitutes a challenge to that
certification. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997);
    28 U.S.C. § 1915
    (a)(3). Good faith is demonstrated when a party seeks review of a
nonfrivolous issue, meaning one involving legal points that are arguable on
the merits. Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983).
Although we construe pro se filings liberally, even pro se litigants must
brief arguments to preserve them. See Yohey v. Collins,
    985 F.2d 222
    , 225
(5th Cir. 1993). Howard fails to articulate a basis for mandamus relief or to
identify any error in the decision of the district court. Accordingly, he has
abandoned any challenge to the district court’s decision. See Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). As
Howard thus fails to identify a nonfrivolous issue for appeal, his IFP motion
is DENIED, and his appeal is DISMISSED as frivolous. See Baugh,
    117 F.3d at 
    202 & n.24; 5th Cir. R. 42.2. His motions for default judgment
and to hold the appellee in contempt are also DENIED.
This dismissal and the dismissal of Howard’s mandamus petition both
count as strikes for purposes of § 1915(g). See Adepegba v. Hammons,
    103 F.3d 383
    , 387 (5th Cir. 1996), abrogated in part on other grounds by Coleman v.
Tollefson,
    575 U.S. 532
    , 534 (2015). Howard is WARNED that, if he
accumulates three strikes, he may not 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