Filed: May 09, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 17-20446 Document: 00514465443 Page: 1 Date Filed: 05/09/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-20446 FILED May 9, 2018 Lyle W. Cayce GEORGE BAY BARNES, Clerk Plaintiff-Appellant v. HOUSTON TEXAS LAW CENTER TEXAS INNOCENCE NETWORK, Defendant-Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-1129 Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURI
Summary: Case: 17-20446 Document: 00514465443 Page: 1 Date Filed: 05/09/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-20446 FILED May 9, 2018 Lyle W. Cayce GEORGE BAY BARNES, Clerk Plaintiff-Appellant v. HOUSTON TEXAS LAW CENTER TEXAS INNOCENCE NETWORK, Defendant-Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-1129 Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURIA..
More
Case: 17-20446 Document: 00514465443 Page: 1 Date Filed: 05/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20446 FILED
May 9, 2018
Lyle W. Cayce
GEORGE BAY BARNES, Clerk
Plaintiff-Appellant
v.
HOUSTON TEXAS LAW CENTER TEXAS INNOCENCE NETWORK,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-1129
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
George Bay Barnes, Texas prisoner # 1144852, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action against the directors of the
Houston Texas Law Center Texas Innocence Network. He moves this court for
leave to proceed in forma pauperis (IFP). By moving to proceed IFP in this
court, Barnes challenges 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). To
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20446 Document: 00514465443 Page: 2 Date Filed: 05/09/2018
No. 17-20446
proceed IFP, Barnes must demonstrate financial eligibility and a nonfrivolous
issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
In determining whether a nonfrivolous issue exists, this court’s inquiry
“is limited to whether the 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). “[W]here the merits are
so intertwined with the certification decision as to constitute the same issue,”
the court may deny the IFP motion and dismiss the appeal sua sponte if it is
frivolous.
Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. R. 42.2.
Although pro se briefs are afforded liberal construction, Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995), arguments must be briefed in order to be
preserved. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1983). Barnes fails
to brief any response to the district court’s finding that his claim was not
cognizable under § 1983 because the defendants, as his prospective
postconviction attorneys, were not state actors for § 1983 purposes. Further,
Barnes raises issues pertaining to another § 1983 complaint. Those
arguments, raised for the first time in this case on appeal, will not be
considered. See Wilson v. Roy,
643 F.3d 433, 435 n.1 (5th Cir. 2011).
Because Barnes fails to raise any legal issues arguable on their merits,
his motion for leave to proceed IFP is denied, and his appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.
2
