eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2011-03

Torrance Flemings v. Marton , 416 F. App'x 462 ( 2011 )


Menu:
 
  •      Case: 10-50672 Document: 00511406192 Page: 1 Date Filed: 03/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
March 10, 2011
No. 10-50672
Summary Calendar                         Lyle W. Cayce
Clerk
TORRANCE FLEMINGS,
Plaintiff-Appellant
v.
WARDEN FNU MARTON, Connally Unit; CORRECTIONAL OFFICER
AZENITH DAVIS, TDC Officer, Connally Unit; CORRECTIONAL OFFICER
FNU MARTINEZ, also known as Sleepy Martinez, TDC Officer, Connally Unit;
JOHN WHITMIRE, State Senator, Chief Director of State of Texas; DIRECTOR
RICK THALER,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CV-347
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Torrance Flemings, Texas prisoner # 1369010, has filed a motion to
proceed in forma pauperis (IFP) on appeal following dismissal of his
    42 U.S.C. § 1983
     complaint, in which challenged conditions at the Connally Unit over the
course of several years. The district court dismissed the complaint pursuant to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50672 Document: 00511406192 Page: 2 Date Filed: 03/10/2011
No. 10-50672
    28 U.S.C. § 1915
    (e)(2)(B) and § 1915A after determining that Flemings’s
complaint was frivolous, failed to state a claim upon which relief could be
granted, or sought monetary relief from an immune defendant.
Flemings’s motion for leave to proceed IFP 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). This court’s 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).
Flemings fails to provide argument that addresses the district court’s
rationale for dismissing his complaint and for determining that his appeal was
not in good faith. See F ED. R. A PP. P. 28(a)(9). Although this court liberally
construes the briefs of pro se appellants, arguments must be briefed to be
preserved. Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993). By failing to
adequately brief a challenge to the district court’s determinations, Flemings has
failed to demonstrate that his appeal is taken in good faith. See Brinkmann v.
Dallas County Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987).
Flemings’s appeal is without arguable merit and therefore is frivolous. See
Howard,
    707 F.2d at 219-20
    . Because the appeal is frivolous, it is dismissed.
See 5th C IR. R. 42.2. Flemings has had two other IFP civil actions dismissed
pursuant to § 1915(e)(2)(B). See Flemings v. 282d Judicial District Court, No.
3:10-CV-700-D (N.D. Tex. Oct. 28, 2010); Flemings v. City of Dallas, No. 3:10-CV-
1188 (N.D. Tex. Oct. 7, 2010). Those two dismissals, as well as the district
court’s dismissal in this case and our dismissal of Flemings’s appeal as frivolous
all count as strikes under
    28 U.S.C. § 1915
    (g). See § 1915(g); Adepegba v.
Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996). Accordingly, Flemings is now
barred under § 1915(g) from proceeding IFP in any civil action or appeal filed
2
Case: 10-50672 Document: 00511406192 Page: 3 Date Filed: 03/10/2011
No. 10-50672
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
IFP DENIED; APPEAL DISMISSED;
    28 U.S.C. § 1915
    (g) BAR
IMPOSED.
3