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Barry Emmett v. Jason McGuire , 430 F. App'x 269 ( 2011 )


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  •      Case: 10-10437     Document: 00511505290          Page: 1    Date Filed: 06/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
June 10, 2011
No. 10-10437
Summary Calendar                         Lyle W. Cayce
Clerk
BARRY P. EMMETT,
Plaintiff - Appellant
v.
JASON MCGUIRE, Irving Police Department; JOHN DOE, Irving Police
Department and Dallas County Sheriff’s Office; OFFICER THOMAS
BROMLEY, City of Irving Police Department,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-389
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Barry P. Emmett, Texas prisoner # 1383329, requests authorization to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his
    42 U.S.C. § 1983
     complaint, which alleged that police officers used excessive
force in arresting him by releasing a police dog against him and that he was
denied medical care for his injuries from the dog. The district court denied
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10437    Document: 00511505290      Page: 2   Date Filed: 06/10/2011
No. 10-10437
Emmett’s request for leave to proceed IFP on appeal on the ground that he was
not a pauper and that his appeal was not taken in good faith.
A movant for leave to proceed IFP on appeal must show that he is
economically eligible and that the appeal is taken in good faith. See
    28 U.S.C. § 1915
    (a)(3); Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982).             “An
investigation into the [IFP] movant’s objective good faith, while necessitating a
brief inquiry into the merits of an appeal, does not require that probable success
be shown.” Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Rather, our
inquiry into an appellant’s good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).”
    Id.
    (quotation marks and citation omitted).        If we uphold the district court’s
certification that the appeal is not taken in good faith, we may dismiss the
appeal sua sponte as frivolous. See Baugh v. Taylor,
    117 F.3d 197
    , 202 & n.24
(5th Cir. 1997); 5th Cir. R. 42.2.
Although pro se briefs must be liberally construed, even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins,
    985 F.2d 222
    ,
224-25 (5th Cir. 1993). Emmett lists issues he wishes to raise on appeal but does
not brief any facts or legal arguments in support of those issues. Emmett’s
failure to address the reasons for the district court’s determination that his
appeal does not involve a nonfrivolous issue has the same effect as if he had not
appealed the judgment. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). By failing to brief the relevant issues, he has not
shown that his appeal raises a nonfrivolous issue. Accordingly, Emmett’s motion
for leave to proceed IFP on appeal is denied, and his appeal is dismissed as
frivolous. See Baugh,
    117 F.3d at 
    202 n.24; Howard,
    707 F.2d at 219-20
    ; 5th Cir.
R. 42.2. His motion to supplement the record also is denied.
Emmett is reminded that, because he has accumulated at least three
strikes for purposes of Section 1915(g), he may no longer proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
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Case: 10-10437   Document: 00511505290     Page: 3   Date Filed: 06/10/2011
No. 10-10437
he is under imminent danger of serious physical injury.       Additionally, we
reiterate our prior warning to Emmett that frivolous, repetitive, or otherwise
abusive filings will invite the imposition of sanctions, including dismissal,
monetary sanctions, and/or restrictions on his ability to file pleadings in this
court and any court subject to this court’s jurisdiction. Emmett is further
warned that, in order to avoid the imposition of sanctions, he should review any
pending appeals and actions and move to dismiss any that are frivolous.
APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; MOTION TO SUPPLEMENT RECORD ON APPEAL DENIED;
SANCTION WARNING ISSUED.
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