Case: 13-30177       Document: 00512330679           Page: 1    Date Filed: 08/02/2013



           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                            August 2, 2013
                                       No. 13-30177
                                                                             Lyle W. Cayce
                                                                                  Clerk
DESMOND F. COOK,

                                                   Plaintiff-Appellant

v.

SERGEANT UNKNOWN LAMONT; LIEUTENANT UNKNOWN HARRIS;
DEPUTY UNKNOWN MALVEAUX; DEPUTY UNKNOWN GLASPER;
DEPUTY UNKNOWN WILLIAMS; NURSE JANE DOE; WARDEN D.
GRIMES; SHERIFF S. GATREAUX,

                                                   Defendants-Appellees


                   Appeals from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:11-CV-358


Before OWEN, ELROD and HAYNES, Circuit Judges
PER CURIAM:*
       Desmond F. Cook, Louisiana prisoner # 367617, moves this court for
authorization to proceed in forma pauperis (IFP) in an appeal of the district
court’s order granting summary judgment to Wade Lamotte, Leonard Harris,
Johnathan Malveaux, Alfred Glasper, Don Williams, and Dennis Grimes, and
dismissing Cook’s 42 U.S.C. § 1983 complaint as barred by the period of



       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 13-30177     Document: 00512330679     Page: 2   Date Filed: 08/02/2013

                                 No. 13-30177

limitations. Additionally, he seeks appointment of counsel. He does not
challenge the district court’s earlier dismissal of his complaint against Sid
Gautreaux and Jane Doe for failure to serve. In his § 1983 complaint, Cook
alleged that prison officials had violated his constitutional rights by using
excessive force against him and then by exhibiting deliberate indifference to his
serious medical needs arising from the use of force.
      By moving to proceed IFP, Cook is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,

, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3). He contends that his
state court petition for judicial review filed in April 2010 raised the same
claims as his May 2011 federal complaint, but, unsupported by analysis or
citation, the contention alone is insufficient to challenge the district court’s
detailed conclusions regarding that petition. See Duffie v. United States, 

, 371 (5th Cir. 2010). Further, Cook’s assertion that the district court’s
judgment violated his civil rights, made without argument or citation to the
record, constitutes an abandonment of that issue. See Brinkmann v. Dallas
County Sheriff Abner, 

, 748 (5th Cir. 1987); Yohey v. Collins, 

, 224-25 (5th Cir. 1983).
      To the extent Cook contends that he has a right to proceed IFP on appeal,
whatever the legal merit of his claims, he is mistaken, as section 1915(a)(3)
specifically gives the district court discretion to determine whether an appeal
is taken in good faith and the appellant is thus permitted to proceed IFP. See
Baugh, 117 F.3d at 200. Similarly, to the extent he challenges the district
court’s decision not to exercise supplemental jurisdiction over his state law
claims, 28 U.S.C. § 13679c)(3) permits a court to decline to exercise
supplemental jurisdiction over such claims when, inter alia, the court dismisses




                                        2
    Case: 13-30177    Document: 00512330679     Page: 3   Date Filed: 08/02/2013

                                 No. 13-30177

all claims over which it had original jurisdiction. See Rhyne v. Henderson
Cnty., 

, 395 (5th Cir. 1992).
      Cook has failed to show that his appeal involves “legal points arguable on
their merits.” Howard, 707 F.2d at 220 (internal quotation marks and citations
omitted). His IFP motion is denied and his appeal dismissed. See Baugh, 117
F.3d at 202 & n.24. His request for appointment of counsel is denied as well.
 See Cooper v. Sheriff, Lubbock County, Texas, 

, 1084 (5th
Cir. 1991).
      This court’s dismissal of this appeal as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 

, 385-
87 (5th Cir. 1996). Cook is cautioned that, if he accumulates three strikes
under § 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. See § 1915(g).
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




                                       3