Marlin v. Fontenot ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 15, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-31260
Summary Calendar
MICHAEL D MARLIN
Plaintiff-Appellant
v.
MS FONTENOT
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:06-CV-1017
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Michael D. Marlin, federal prisoner # 08387-003, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal. The district court denied
Marlin’s motion to appeal IFP and certified that the appeal was not taken in
good faith. By moving for IFP, Marlin is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Marlin’s Federal Tort Claims Act and 42 U.S.C. § 1983 claims are deemed
abandoned because he has failed to brief them. See Yohey v. Collins, 985 F.2d
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-31260
222, 224-25 (5th Cir. 1993); United States v. Beaumont, 972 F.2d 553, 563 (5th
Cir. 1992). Because the district court failed to address Marlin’s Americans With
Disabilities Act (ADA) claim, we grant his motion for IFP. However, his
allegations fail to state a claim upon which relief under the ADA can be granted.
Marlin’s arguments reflect that the alleged actions were at best retaliatory acts
due to his writ writer reputation rather than discrimination based upon
disability. Having reviewed Marlin’s brief, the record, and the opinions below,
we find no reversible error. Therefore, we dispense with further briefing and
affirm the dismissal of Marlin’s complaint.
The district court’s dismissal of Marlin’s suit counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Marlin is cautioned that if he accumulates three strikes under
§ 1915(g), 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).
IFP GRANTED; AFFIRMED; SANCTION WARNING ISSUED.
2