Case: 17-60432      Document: 00514409845         Page: 1    Date Filed: 04/02/2018




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

                                      No. 17-60432
                                                                                Fifth Circuit

                                                                              FILED
                                                                           April 2, 2018

MEIKA DESEAN BRITTON,                                                    Lyle W. Cayce
                                                                              Clerk
                                                 Plaintiff-Appellant

v.

SOUTHAVEN POLICE DEPARTMENT; BRENNON RUSHING, Detective
Southaven Police Department; STEVE PIRTLE, Chief of Police; FRANK
CASWELL, Probation Officer; BONITA CLARK, Probation Officer Supervisor;
GERALD W. CHATHAM, SR., Circuit Court Judge; ROBERT REID
MORRIS, III, Assistant District Attorney; MARSHALL FISHER, Mississippi
Department of Corrections; CITY OF SOUTHAVEN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:16-CV-84


Before SMITH, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Meika Desean Britton, Mississippi prisoner # 167394, moves for leave to
appeal in forma pauperis (IFP) from the district court’s order granting
summary judgment, dismissing his 42 U.S.C. § 1983 claims against Mississippi



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-60432

Department of Corrections employees Frank Caswell and Bonita Clark and
against Southaven Police Detective Brennon Rushing. By moving to proceed
IFP, Britton challenges the district court’s determination that his appeal has
not been brought in good faith. See Baugh v. Taylor, 

, 202 (5th
Cir. 1997). This court’s inquiry into an appellant’s good faith “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 

, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
      Urging that the summary judgment dismissal was error, Britton
complains that he was denied the opportunity to conduct discovery and
conclusionally asserts that material factual disputes precluded summary
judgment. However, he does not challenge any legal aspect of the district
court’s disposition of his claims against Caswell and Clark, specifically failing
to brief any argument challenging the district court’s determination that he
had not exhausted his administrative remedies prior to filing suit, as required
by 42 U.S.C. § 1997e.    He has therefore abandoned any challenge to the
dispositive issue for appeal with respect to those defendants. See Yohey v.
Collins, 

, 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy
Sheriff Abner, 

, 748 (5th Cir. 1987).
      With respect to Rushing, Britton renews his claim that the warrantless
search and seizure of his cellphone violated his Fourth Amendment rights.
Although he urges that there was a material factual dispute concerning
whether probable cause existed for the search, because Britton was on post-
release supervision, probable cause was not required. See United States v.
Knights, 

(2001); United States v. Keith, 

(5th Cir.
2004). Additionally, Britton complains that the search in his case was not a
true probationer search because his conditions of supervision did not authorize



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                                 No. 17-60432

it. The argument is meritless. See 

; Barlow v. State,

, 202 (Miss. Ct. App. 2008).
      Britton briefs no argument challenging the district court’s determination
that the undisputed facts showed that Rushing had the requisite reasonable
suspicion for the warrantless search of his cellphone based on the information
received from a concerned father who had seen inappropriate and provocative
text messages between Britton, a sex offender previously convicted of child
exploitation, and a teenaged girl. He has thus abandoned any such challenge.
See 

; 

. Even had he
briefed the argument, Britton could not show that the search of his cellphone
was impermissible under either state or federal law. See 

; 

.
      Thus, Britton fails to demonstrate that his appeal raises a nonfrivolous
issue. 

. Accordingly, the motion for IFP is denied,
and the appeal is dismissed as frivolous. See 

n.24; 5TH
CIR. R. 42.2. The motion for the appointment of counsel is similarly denied.
      The dismissal of the instant appeal as frivolous counts as a strike for
purposes of 28 U.S.C. §1915(g). See Adepegba v. Hammons, 

, 387-
88 (5th Cir. 1996). Britton is cautioned that if he accumulates three strikes
under § 1915(g), he will not be allowed 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 DENIED; APPEAL DISMISSED; MOTION FOR THE
APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.




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