Grant v. Dallas County , 103 F. App'x 527 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11096
Conference Calendar
RODNEY GRANT,
Plaintiff-Appellant,
versus
DALLAS COUNTY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-21-H
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rodney Grant, Texas prisoner # 1082944, proceeding pro se,
has filed an application for leave to proceed in forma pauperis
(IFP) on appeal, following the district court’s dismissal of his
civil rights complaint as frivolous because it is time-barred.
By moving for IFP, Grant is challenging the district court’s
certification that IFP status should not be granted on appeal
because his 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this opinion should not be published and is not precedent except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. 03-11096
-2-
Grant argued in the district court that his civil rights
complaint is not time-barred because he is entitled to equitable
tolling. However, he has failed to brief his arguments for
equitable tolling in this court. Although pro se briefs are
afforded liberal construction, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972), pro se litigants must brief contentions in
order to preserve them. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
Grant’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, we uphold the district court’s order certifying that
the appeal is not taken in good faith and denying Grant IFP
status on appeal, we deny the motion for leave to proceed IFP,
and we dismiss Grant’s appeal as frivolous. See Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2. Grant’s motion for the appointment
of appellate counsel is denied as moot.
The district court’s dismissal of Grant’s action and our
dismissal of his appeal as frivolous count as two strikes for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). We caution Grant that should
he accumulate three strikes, he will be unable to proceed IFP in
any civil action or appeal filed while he is incarcerated or
No. 03-11096
-3-
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
IFP DENIED; MOTION FOR APPOINTMENT OF APPELLATE COUNSEL
DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.