Alisha Morris-O'Brien v. Dept of Family Protc Serv ( 2018 )

Case: 17-11264 Document: 00514719514 Page: 1 Date Filed: 11/12/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-11264 November 12, 2018
Lyle W. Cayce
Clerk
ALISHA MORRIS-O’BRIEN,
on Behalf of Minor Children: L.P., I.B., P.S-D., K.D., S.J., S.J.,
Plaintiff−Appellant,
versus
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Defendant−Appellee.
Appeals from the United States District Court
for the Northern District of Texas
No. 5:17-CV-32
Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
Alisha Morris-O’Brien, while detained in the Lubbock County Detention
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 17-11264
Center, inmate #111041, sued the Department of Family and Protective Ser-
vices pro se. The district court denied Morris-O’Brien leave to proceed in forma
pauperis (“IFP”) on appeal and certified that the appeal was not taken in good
faith. Morris-O’Brien moves to proceed IFP in this appeal, thereby challenging
the certification that her appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Morris-O’Brien’s
good faith “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).
Morris-O’Brien contends that the district erred when it certified that the
appeal was not taken in good faith. She contends that her allegations of rape
and excessive force should not have been dismissed as frivolous. She also avers
that in prison she was physically attacked by jailors, verbally abused, sexually
harassed, and emotionally intimidated. She contends that the prison staff
ignored her complaints and grievances. She also urges that she alleged
extraordinary circumstances in her initial appeal, such as police brutality,
witness tampering, harassment, excessive force, retaliation, and duress. She
additionally posits that her children have been exploited, abused, and raped
while in the custody of the state. Finally, she contends that any delay in
prosecuting the case was justifiable.
Morris-O’Brien fails to provide a reasoned factual or legal analysis for
these claims, and she does not offer any nonfrivolous basis for concluding that
the district court should have granted the postjudgment motions that are the
subject of this appeal. Because Morris-O’Brien fails to brief any issues ade-
quately, they are abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th
Cir. 1999).
Thus, Morris-O’Brien has not shown that she will present a nonfrivolous
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Case: 17-11264 Document: 00514719514 Page: 3 Date Filed: 11/12/2018
No. 17-11264
issue for appeal. See Howard, 707 F.2d at 220. Accordingly, her motion for
leave to proceed IFP on appeal is DENIED, and her appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
As we recognized on September 10, 2018, Morris-O’Brien, also known as
Morris, has accumulated at least three strikes under 28 U.S.C. § 1915(g).
Morris v. Lubbock Cty. Det. Ctr., 737 F. App’x 213, 214 (5th Cir. 2018); Morris
v. Texas Boys Ranch, 737 F. App’x 216, 217 (5th Cir. 2018); Morris v. L.C.D.C.,
737 F. App’x 218, 219 (5th Cir. 2018). We have not applied the § 1915(g) bar
here because Morris-O’Brien filed this appeal before the accumulation of three
strikes. See § 1915. We reiterate, however, that Morris-O’Brien is barred
under § 1915(g) from proceeding IFP in any civil action or appeal filed while
she is incarcerated or detained in any facility unless she is under imminent
danger of serious physical injury. See § 1915(g).
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