Maurice Mitchell v. Angela Henderson

Case: 13-20262 Document: 00512475938 Page: 1 Date Filed: 12/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20262 December 18, 2013
Lyle W. Cayce
MAURICE MITCHELL, Clerk
Plaintiff-Appellant
v.
CORRECTIONAL OFFICER ANGELA R. HENDERSON; GRIEVANCE
COORDINATOR A. GUIDRY; LAW LIBRARY SUPERVISOR REGIS C.
RAYME; SENIOR WARDEN BRENDA CHANEY,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-192
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Maurice Mitchell, Texas prisoner # 648121, moves for leave to proceed in
forma pauperis (IFP) on appeal from the district court’s dismissal of his 42
U.S.C. § 1983 complaint as frivolous. Mitchell’s IFP motion is a challenge to
the district court’s certification that his appeal is not taken in good faith. See
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-20262
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).
A liberal construction of Mitchell’s brief reveals that he asserts that the
dismissal of his complaint as frivolous was error, urging that the district court
made inappropriate factual determinations and legal conclusions. He also
conclusionally asserts that the district court was biased against him, but his
conclusional assertion, based on the court’s adverse ruling, is insufficient to
demonstrate bias on the district court’s part. See Liteky v. United States, 510
U.S. 540, 555 (1994).
Although Mitchell broadly references his denial-of-access and retaliation
claims, he fails to brief any argument challenging the district court’s reasons
for dismissing those claims as frivolous. He has thus abandoned any such
challenge. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Accordingly, the instant appeal is without arguable merit and is
frivolous. See Howard, 707 F.2d at 219-20. The IFP motion is denied, and the
appeal is dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.
Both the district court’s dismissal of the complaint as frivolous and our
dismissal of the appeal as frivolous count as “strikes” for purposes of the “three
strikes” bar under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Mitchell is warned that if he accumulates 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
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Case: 13-20262 Document: 00512475938 Page: 3 Date Filed: 12/18/2013
No. 13-20262
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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