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Thomas Holman v. Bryan Collier ( 2020 )


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  • Case: 19-50408       Document: 00515662852             Page: 1      Date Filed: 12/07/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 7, 2020
No. 19-50408                              Lyle W. Cayce
Clerk
Thomas Holman,
Plaintiff—Appellant,
versus
Bryan Collier; John Doe x14; Jane Doe x6,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-1069
Before Clement, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Plaintiff Thomas Holman, proceeding pro se, appeals the district
court’s decision dismissing his § 1983 claims as barred by Heck v. Humphrey,
    512 U.S. 477
     (1994), and frivolous under
    28 U.S.C. § 1915
    (e). 1
*
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opinion should not be published and is not precedent except under the limited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.
1
We note that a suit may be dismissed under
    28 U.S.C. § 1915
    (e) only when the
suit is brought in forma pauperis (IFP)—and Holman paid the filing fee in this case. We
find the district court’s error on this point to be harmless, however, because 28 U.S.C.
Case: 19-50408        Document: 00515662852              Page: 2      Date Filed: 12/07/2020
No. 19-50408
Holman alleges that Defendants wrongfully imprisoned him for nearly
four months, denied him access to a lawyer, held a parole hearing in his
absence and without notice, and forced him to work without compensation.
He further alleges that he was raped in prison. Holman seeks $7.3 million in
damages.
We construe pro se briefs liberally. See Haines v. Kerner,
    404 U.S. 519
    ,
520 (1972). But even pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins,
    985 F.2d 222
    , 224–25 (5th Cir. 1993). So
“[w]e will not raise and discuss legal issues” that Holman has “failed to
assert.” Brinkmann v. Dallas Cty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748
(5th Cir. 1987). In short, Holman “does not address the merits of the [district
court] opinion.”
    Id.
        Indeed, he fails to make “even the slightest
identification of any error in [the court’s] legal analysis or its application,”
    id.,
     opting instead to repeat his factual allegations and list some legal
authorities without analysis. It is thus as if Holman “had not appealed [the]
judgment,”
    id.,
     and we dismiss this appeal as frivolous. 5th Cir. R. 42.2.
Both our dismissal and the district court’s dismissal count as strikes
under
    28 U.S.C. § 1915
    (g). Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir.
1996), abrogated in part on other grounds by Coleman v. Tollefson,
    575 U.S. 532
    (2015). Holman is cautioned that if he accumulates three strikes, he will not
be allowed to proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is in imminent danger of
serious physical injury.
    28 U.S.C. §§ 1915
    (g)–(h). As Holman is not
proceeding in forma pauperis in the instant appeal, he is also warned that
sanctions may be imposed in response to future frivolous filings.
§ 1915A(b)(1) imposes an identical “frivolousness” standard on all civil actions brought by
a prisoner against a governmental officer.
2