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Lester v. Livingston, 06-50184 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 06-50184 Visitors: 37
Filed: Jun. 19, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 18, 2007 Charles R. Fulbruge III Clerk No. 06-50184 Conference Calendar ANDREW FRANK LESTER, Plaintiff-Appellant, versus BRAD LIVINGSTON; DOUG DRETKE; CHRISTINA MELTON CRAIN; DON B. JONES; WILLIAM MOODY; ADRIAN A. ARRIAGA; MARY BACON; OLIVER J. BELL; PATRICIA A. DAY; PIERCE MILLER; GREGORY COLEMAN; JOHN OR JANE DOES, Defendants-Appellees. - Appeal from the United States Distric
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                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 18, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 06-50184
                          Conference Calendar



ANDREW FRANK LESTER,

                                      Plaintiff-Appellant,

versus

BRAD LIVINGSTON; DOUG DRETKE; CHRISTINA MELTON CRAIN; DON B.
JONES; WILLIAM MOODY; ADRIAN A. ARRIAGA; MARY BACON; OLIVER J.
BELL; PATRICIA A. DAY; PIERCE MILLER; GREGORY COLEMAN; JOHN OR
JANE DOES,
                                   Defendants-Appellees.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                         USDC No. 5:05-CV-1117
                          --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Andrew Frank Lester, Texas prisoner # 695275, moves for

leave to proceed in forma pauperis (IFP) on appeal following the

dismissal, as frivolous, of his 42 U.S.C. § 1983 civil rights

complaint.     See 28 U.S.C. § 1915(a)(3).   We construe the motion

as a challenge to 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).


     *
       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.
                           No. 06-50184
                                -2-

     Lester’s motion does not directly challenge the district

court’s reasons for finding his complaint frivolous.      Failure

to identify an error in the district court’s analysis has the

same effect as though the appellant had not appealed at all.

Brinkmann v. Dallas County Deputy Sheriff Abner, 
813 F.2d 744
,

748 (5th Cir. 1987).   Although pro se briefs are liberally

construed, even pro se litigants must brief arguments to preserve

them.   Yohey v. Collins, 
985 F.2d 222
, 225 (5th Cir. 1993).

     The instant appeal is without arguable merit and is

frivolous.   Accordingly, Lester’s request for IFP status is

denied, and the appeal is dismissed.    See Howard v. King,

707 F.2d 215
, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.    Lester is

cautioned that the dismissal of his complaint by the district

court and our dismissal of this appeal as frivolous both count

as strikes under 28 U.S.C. § 1915(g).     See Adepegba v. Hammons,

103 F.3d 383
, 385-87 (5th Cir. 1996).     Lester also 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).

     MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

Source:  CourtListener

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