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Victor Wilson v. J. Mossbarger ( 2018 )


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  •      Case: 17-40546      Document: 00514357877         Page: 1    Date Filed: 02/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40546
Fifth Circuit
FILED
February 22, 2018
VICTOR KEITH WILSON,                                                      Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
J.W. MOSSBARGER, Warden; J. JACKSON, JR., Major; N. SMITH, Captain;
R. GILBERT, Lieutenant; JANE DOE, Investigator,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:14-CV-244
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Victor Keith Wilson, Texas prisoner # 796590, filed a civil rights
complaint in which he asserted claims against several prison officials. He was
granted leave to proceed in forma pauperis (IFP), and was ordered to file a
more definite statement of his claims. After Wilson complied with that order,
his case was reassigned to another district judge. The district court then
dismissed Wilson’s claims as frivolous and for failure to state a claim on which
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40546     Document: 00514357877      Page: 2   Date Filed: 02/22/2018
No. 17-40546
relief may be granted and denied Wilson’s motion to proceed IFP on appeal,
certifying that the appeal was not taken in good faith. By moving for IFP
status in this court, Wilson is challenging the district court’s certification. See
Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
In his IFP filings in this court, Wilson raises no argument challenging
the district court’s determination that he failed to state a procedural due
process claim, a retaliation claim, or a claim of deliberate indifference
regarding prison conditions. When an appellant fails to identify any error in
the district court’s analysis, it is the same as if the appellant had not appealed
that issue. Brinkmann v. Dallas County Deputy Sheriff Abner,
    813 F.2d 744
    ,
748 (5th Cir. 1987). In view of Wilson’s failure to set forth any argument
regarding his claims for relief or identify any error in the district court’s
analysis, such issues are considered abandoned. See
    Yohey, 985 F.2d at 224
    -
25; see also
    Brinkmann, 813 F.2d at 748
    .
Wilson’s argument that the district court’s dismissal was an abuse of
discretion because the complaint was never served on the defendants and he
had been granted leave to proceed IFP in the district court prior to
reassignment lacks merit.      Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the
district court may sua sponte dismiss an IFP complaint “at any time” if, as in
this case, the complaint fails to state a claim. See Brewster v. Dretke,
    587 F.3d 764
    , 769 n.3 (5th Cir. 2009). A dismissal under § 1915(e) is typically made
prior to the issuance of process, as was the case here. See Wilson v. Barrientos,
    926 F.2d 480
    , 482 (5th Cir. 1991).
Finally, Wilson’s contention that the district court erred in dismissing
his complaint merely because if felt that his factual allegations were unlikely
lacks support in the record. Rather, the district court expressly recognized that
it must accept as true the pleaded facts in determining whether the complaint
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Case: 17-40546     Document: 00514357877      Page: 3   Date Filed: 02/22/2018
No. 17-40546
stated a claim on which relief could be granted, see Green v. Atkinson,
    623 F.3d 278
    , 280 (5th Cir. 2010), and there is no indication in the record that the
district court erred in this regard.
The instant appeal is without arguable merit and is frivolous.           See
Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Accordingly, the IFP
motion is DENIED, and the appeal is DISMISSED. See
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of the complaint as frivolous and for failure
to state a claim counts as a “strike” for purposes of the “three strikes” bar under
28 U.S.C. § 1915(g), as does the dismissal of the instant appeal. See Adepegba
v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996). Wilson is WARNED that if
he accumulates at least three strikes under § 1915(g), he will not be able to
proceed IFP in any civil action or appeal filed in a court of the United States
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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