Bryan Cooper v. Paul Morales

Case: 13-51102 Document: 00512636333 Page: 1 Date Filed: 05/20/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-51102
FILED
May 20, 2014
Lyle W. Cayce
BRYAN OSCAR COOPER, Clerk
Plaintiff-Appellant
v.
JUAN TREVINO, Correctional Officer, In His Individual and Official
Capacity,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CV-738
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM: *
Bryan Oscar Cooper, Texas prisoner # 1043427, moves this court for
leave to proceed in forma pauperis (IFP) in his appeal of the district court’s
denial of his motion to compel payment of the jury award. In Cooper’s 42
U.S.C. § 1983 action, the jury found Juan Trevino liable in his individual
capacity and awarded Cooper $30 in compensatory damages and $3,500 in
punitive damages. The district court denied Cooper’s motion to compel
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51102 Document: 00512636333 Page: 2 Date Filed: 05/20/2014
13-51102
payment of the jury award because Trevino had not been served with Cooper’s
motion and the Attorney General’s Office had not determined whether to
indemnify Trevino for the amount of the jury’s award and, as a result, did not
have the authority to represent Trevino in a collection proceeding. Pursuant
to Federal Rule of Appellate Procedure 24(a)(3)(A), the court denied Cooper
leave to proceed IFP on appeal, certifying that his appeal was not taken in good
faith because he had failed to explain why its reasons for denying the motion
were erroneous.
By moving for IFP status in this court, Cooper is challenging 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); FED. R. APP. P. 24(a). Cooper does
not address the district court’s reasons for its certification decision. See Baugh,
117 F.3d at 202. Accordingly, Cooper’s challenge to the district court’s
certification decision is deemed abandoned. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Cooper 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, Cooper’s motion for leave to
proceed IFP on appeal is DENIED, and his appeal is DISMISSED as frivolous.
See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2.
Our dismissal as frivolous of Cooper’s appeal counts as a strike pursuant
to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Cooper is CAUTIONED 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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