Gary Landry v. James LeBlanc

Case: 13-30753 Document: 00512586229 Page: 1 Date Filed: 04/04/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30753 FILED
April 4, 2014
Lyle W. Cayce
Clerk
GARY LANDRY,
Plaintiff−Appellant,
versus
KEVIN BENJAMIN; CHADWICK DARBONNE; UNKNOWN MAPLES,
Captain; M. PIAZZA,
Defendants−Appellees.
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:12-CV-311
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Gary Landry, Louisiana prisoner # 326223, moves for leave to proceed in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30753 Document: 00512586229 Page: 2 Date Filed: 04/04/2014
No. 13-30753
forma pauperis (“IFP”) in his appeal of the dismissal, for failure to state a
claim, of his 42 U.S.C. § 1983 suit. Landry’s motions to file a supplemental
brief and for the appointment of counsel are DENIED.
By moving for IFP status, Landry is challenging the district court’s cer-
tification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a). Landry’s brief on appeal
makes only a conclusional assertion of good faith and does not address the dis-
trict court’s reasons for its certification decision, which included thorough con-
sideration of his claims by way of adoption of the magistrate judge’s report and
recommendation. See Baugh, 117 F.3d at 202. Accordingly, Landry’s challenge
to the certification decision is deemed abandoned. See Brinkmann v. Dall.
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Landry has not
shown that his 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). Therefore, the motion for
leave to proceed IFP on appeal is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The dismissal of the complaint as frivolous in the district court and the
dismissal of the appeal count as strikes pursuant to 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Landry is cau-
tioned that if he accumulates three § 1915(g) strikes, he will not be able to
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. See § 1915(g).
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