Filed: Jan. 09, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-40677 Document: 00512495386 Page: 1 Date Filed: 01/09/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-40677 January 9, 2014 Lyle W. Cayce PATRICK JAMES HOWARD, Clerk Plaintiff-Appellant v. A. DAVIS, Subordinate, Defendant-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:12-CV-913 Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Patrick James Howard,
Summary: Case: 13-40677 Document: 00512495386 Page: 1 Date Filed: 01/09/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-40677 January 9, 2014 Lyle W. Cayce PATRICK JAMES HOWARD, Clerk Plaintiff-Appellant v. A. DAVIS, Subordinate, Defendant-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:12-CV-913 Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Patrick James Howard, ..
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Case: 13-40677 Document: 00512495386 Page: 1 Date Filed: 01/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-40677 January 9, 2014
Lyle W. Cayce
PATRICK JAMES HOWARD, Clerk
Plaintiff-Appellant
v.
A. DAVIS, Subordinate,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:12-CV-913
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Patrick James Howard, Texas prisoner # 1527296, moves in this court
for leave to proceed in forma pauperis (IFP) on appeal from the district
court’s dismissal with prejudice of his civil rights complaint filed under 42
U.S.C. § 1983. By moving to proceed IFP, Howard is challenging the district
court’s certification that the 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)(5).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40677 Document: 00512495386 Page: 2 Date Filed: 01/09/2014
No. 13-40677
Other than a single-sentence, conclusional assertion that he did
exhaust his administrative remedies against Andrew Davis for excessive use
of force, Howard does not acknowledge or address the basis for the dismissal
of any of the claims alleged in his complaint. Even pro se litigants must brief
arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). Howard has thus waived any challenge to the dismissal of
his claims by failing to brief the reasons given for the dismissal. See id.; see
also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
813 F.2d 744, 748 (5th
Cir. 1987) (stating that failure to identify any error in the district court’s
analysis is the same as if the appellant had not appealed the judgment).
Howard has failed to show that his appeal involves “legal points
arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). Accordingly, his IFP motion
and his motion for the appointment of counsel are DENIED. Howard’s
appeal is frivolous and is therefore DISMISSED. See
id. at 219-20; 5TH CIR.
R. 42.2. The dismissal of Howard’s appeal counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th
Cir. 1996). Howard is cautioned that if he accumulates three 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).
IFP MOTION and MOTION FOR THE APPOINTMENT OF
COUNSEL DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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