Perkins v. Nogle , 289 F. App'x 797 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 07-50729
Conference Calendar Charles R. Fulbruge III
Clerk
ROLAND S PERKINS
Plaintiff-Appellant
v.
FNU NOGLE, San Antonio Police Department Officer; FNU LAND, San Antonio
Police Department; FNU SAULTER, San Antonio Police Department; POLICE
CHIEF MCMANUS; BEXAR COUNTY ADULT DETENTION CENTER
COMMISSARY, Premier Management Enterprise; APPEAL MANAGEMENT
CENTER; FNU FULLER
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CV-292
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Roland S. Perkins, Texas prisoner # 704129, has moved for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 lawsuit as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and for failure to
state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii). The
*
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should not be published and is not precedent except under the limited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.
No. 07-50729
district court denied Perkins IFP status on appeal and certified that the appeal
was not taken in good faith under § 1915(a)(3).
By moving for leave to proceed IFP, Perkins is challenging the district
court’s certification that the appeal is not taken in good faith. Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken
in 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). Probable
success on the merits is not required. Id.Perkins argues that he lacks funds to pursue his appeal, but he fails to
brief any argument regarding the district court’s certification decision or, in
particular, its dismissal of his § 1983 lawsuit as frivolous and for failure to state
a claim upon which relief can be granted. Failure to identify any error in the
district court’s analysis is the same as if the appellant had not appealed the
judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987). 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).
Perkins has thus abandoned any challenge to the district court’s denial of IFP
on appeal. See Brinkmann, 813 F.2d at 748. Accordingly, we deny his IFP
motion, and we dismiss his appeal as frivolous. See 5TH CIR. R. 42.2; Baugh, 117
F.3d at 202 & n.24; Howard, 707 F.2d at 220.
The district court’s dismissal of Perkins’s § 1983 lawsuit as frivolous and
for failure to state a claim pursuant to § 1915(e)(2)(B)(i)-(ii) and our dismissal
of this appeal as frivolous both count as strikes for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Perkins previously
accumulated a strike in another case. Perkins v. Blackwell, No. C-960526 (S.D.
Tex. May 20, 1998), aff’d sub nom. Perkins v. Dial, No. 98-40798, 2000 WL
2No. 07-50729
1598085 (5th Cir. Oct. 4, 2000) (unpublished); see Adepegba, 103 F.3d at 387;
Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 461-64 (5th Cir. 1998). As
Perkins has now accumulated three strikes, he is barred from proceeding IFP
while he is incarcerated or detained in any facility unless he “is under imminent
danger of serious physical injury.” § 1915(g).
MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
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