Tijerina v. Creager

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2009
No. 08-11072
Summary Calendar Charles R. Fulbruge III
Clerk
CARLOS TIJERINA
Plaintiff-Appellant
v.
DETECTIVE ERIC HARRIS, Individual and Official Capacity
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:08-CV-106
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Carlos Tijerina, Texas prisoner # 1349165, moves this court for
authorization to proceed in forma pauperis (IFP) on appeal following the district
court’s dismissal of his 42 U.S.C. § 1983 suit as frivolous pursuant to 28 U.S.C.
§ 1915 and 28 U.S.C. § 1915A. Tijerina’s motion to proceed IFP on appeal is
construed as 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).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-11072
Tijerina argues that his rights were violated when Eric Harris arrested
him. He further contends that his rights were violated in connection with his
criminal prosecution, appeal, and state postconviction proceedings. Tijerina
moves this court to consolidate this appeal with others that he has pending.
Tijerina does not analyze, and has thus abandoned, the issue whether the
district court erred by determining that the instant suit was not timely filed and
by dismissing it on that basis. 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).
Tijerina has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,
his motion to proceed IFP is DENIED. See Baugh, 117 F.3d at 202. Tijerina’s
motion to consolidate is likewise DENIED. His appeal is DISMISSED as
frivolous. See 5 TH C IR. R. 42.2.
The district court’s dismissal of Tijerina’s suit as frivolous and the
dismissal of this appeal as frivolous both count as strikes for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Tijerina is WARNED that, if he accumulates three strikes pursuant to
§ 1915(g), he may not 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.” § 1915(g).
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