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Escobedo v. Gutierrez ( 2021 )


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  • Case: 20-50365     Document: 00515811512         Page: 1     Date Filed: 04/07/2021
United States Court of Appeals
for the Fifth Circuit                        United States Court of Appeals
Fifth Circuit
FILED
April 7, 2021
No. 20-50365                    Lyle W. Cayce
Summary Calendar                       Clerk
Ricky Escobedo,
Plaintiff—Appellant,
versus
Katherine R. Gutierrez, Special Agent of the Federal Bureau of
Investigation; Brian J. Onofre, Special Agent with (TFO) of the Federal
Bureau of Investigation,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-239
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Ricky Escobedo, federal prisoner # 89282-380, moves to proceed in
forma pauperis (IFP) to appeal the denial of his Federal Rule of Civil
Procedure 59(e) motion to alter or amend the district court’s judgment
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50365      Document: 00515811512           Page: 2    Date Filed: 04/07/2021
No. 20-50365
dismissing his
    42 U.S.C. § 1983
     civil rights complaint for failure to state a
claim. Escobedo had alleged that the defendants, both special agents with the
Federal    Bureau    of   Investigation,    were    responsible    for   several
unconstitutional searches and seizures of his personal property.
By moving to proceed IFP in this court, Escobedo is challenging the
district court’s certification that an appeal would not be taken in good faith.
See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). This court’s “inquiry
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).
Escobedo has failed to identify any errors in the district court’s
analysis and, thus, it is as if he has not challenged the district court’s
judgments. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). Although this court liberally construes pro se filings,
even pro se litigants must brief arguments to preserve them. See Yohey v.
Collins,
    985 F.2d 222
    , 225 (5th Cir. 1993). Escobedo has therefore failed to
show that his appeal involves “legal points arguable on their merits (and
therefore not frivolous).” See Howard,
    707 F.2d at 220
     (internal quotation
marks and citation omitted). Escobedo’s appeal is without arguable merit
and is frivolous. See
    id. at 219-20
    . Because the appeal is frivolous, it is
DISMISSED. See 5th Cir. R. 42.2.
The district court’s dismissal of Escobedo’s complaint for failure to
state a claim counts as a strike under
    28 U.S.C. § 1915
    (g). See Brown v. Megg,
    857 F.3d 287
    , 290-92 (5th Cir. 2017). The dismissal of this appeal as frivolous
also counts as a strike. See § 1915(g); Coleman v. Tollefson,
    135 S. Ct. 1759
    ,
1763-64 (2015); Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).
Escobedo is WARNED that if he accumulates a third strike, he may not
proceed IFP in any civil action or appeal while he is incarcerated or detained
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Case: 20-50365     Document: 00515811512           Page: 3   Date Filed: 04/07/2021
No. 20-50365
in any facility unless he is in imminent danger of serious physical injury. See
§ 1915(g).
IFP     MOTION          DENIED;          APPEAL        DISMISSED;
SANCTION WARNING ISSUED.
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