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Eddie Johnson v. Jacqueline Chenier , 438 F. App'x 251 ( 2011 )


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  •      Case: 11-20003     Document: 00511524820         Page: 1     Date Filed: 06/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
June 29, 2011
No. 11-20003
Summary Calendar                        Lyle W. Cayce
Clerk
EDDIE DON JOHNSON,
Plaintiff-Appellant
v.
JACQUELINE CHENIER, Supervising Parole Officer; RISSIE OWENS,
Chairman; ROI DICKERSON, Supervising Parole Officer; CHIAZOR
OFOROILE, Hearing Officer; JOSEPH PRESIFKE, Attorney,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-2881
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Eddie Don Johnson, Texas prisoner # 364033, proceeding pro se and in
forma pauperis (IFP) appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim. See 28 U.S.C.
§§ 1915A(b)(1), 1915(e)(2)(B)(i), (ii). Although Johnson argues the merits of some
of his claims on appeal, he wholly fails to challenge the district court’s reasons
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20003    Document: 00511524820      Page: 2   Date Filed: 06/29/2011
No. 11-20003
for the dismissal of his claims, specifically that (1) to the extent that Johnson
sought to void his conviction and obtain immediate release from prison, the
claims sounded in habeas and not in civil rights and, thus, would be dismissed
without prejudice for failure to state a viable civil rights claim; (2) Johnson’s
claims for monetary damages for wrongful incarceration were barred by Heck v.
Humphrey,
    512 U.S. 477 
    (1994); and (3) Johnson’s § 1983 claims and his claims
asserted under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132,
were time barred, and, in the alternative, that Johnson had failed to allege a
nonfrivolous ADA claim. By failing to brief any argument challenging the
district court’s reasons for dismissal, Johnson has abandoned the only ground
for appeal.   See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993);
Brinkmann v. Dallas County Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir.
1987).
Johnson’s appeal is without arguable merit and therefore frivolous. See
Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Because it is frivolous, it is
dismissed. See 5TH CIR. R. 42.2. Johnson’s motion for the appointment of
counsel is denied.
The district court’s dismissal of the complaint and this court’s dismissal
of the appeal count as strikes for purposes of § 1915(g). See Adepegba v.
Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996); see also Patton v. Jefferson
Correctional Center,
    136 F.3d 458
    , 462-63 (5th Cir. 1998).            Johnson is
CAUTIONED 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION
DENIED.
2