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Jeffrey Popp v. McLennan County Sheriff's Dep't , 379 F. App'x 322 ( 2010 )


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  •      Case: 09-50891     Document: 00511115552          Page: 1    Date Filed: 05/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
May 19, 2010
No. 09-50891
Summary Calendar                         Lyle W. Cayce
Clerk
JEFFREY T POPP,
Plaintiff-Appellant
v.
MCLENNAN COUNTY SHERIFF'S DEPARTMENT; AGRIPLEX TASK
FORCE; JUDGE GEORGE ALLEN; MCLENNAN COUNTY D.A.'S OFFICE;
SCOTT PETERSON; CHARLES MCDONALD; KAY SMITH,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CV-332
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Jeffrey T. Popp moves this court for authorization to proceed in forma
pauperis (IFP) in this appeal from the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim. The district court
dismissed Popp’s complaint as barred by Heck v. Humphrey,
    512 U.S. 477 
    (1994),
as to defendants McLennan County Sheriff’s Department, Agriplex Task Force,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50891     Document: 00511115552 Page: 2       Date Filed: 05/19/2010
No. 09-50891
Mclennan County D.A.’s Office, Scott Peterson, Charles McDonald, and Kay
Smith. The district court further determined that judicial immunity barred
Popp’s claims against Texas Judge George Allen and it dismissed those claims
as well. The district court denied Popp leave to proceed IFP on appeal and
certified that his appeal was not taken in good faith for the reasons stated in the
original dismissal.   Popp’s IFP motion is a challenge to the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997); Jackson v. Johnson,
    475 F.3d 261
    , 267 (5th Cir.
2007).
Popp does not address the district court’s reasons for dismissing his § 1983
complaint. Because he fails to identify any error in the district court’s analysis,
any argument is abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). Popp has not shown that he will
present a nonfrivolous issue on appeal. See Howard v. King,
    707 F.2d 215
    , 220
(5th Cir. 1983). Accordingly, the motion for leave to proceed IFP is denied and
the appeal is dismissed as frivolous. See
    Baugh, 117 F.3d at 202 
    n.24; 5 TH C IR.
R. 42.2.
The dismissal of the initial complaint as frivolous and for failure to state
a claim and the dismissal of this appeal as frivolous each count as one strike
under 28 U.S.C. § 1915(g). Popp 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).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
2