Mervin Spencer v. St. John the Baptist Parish, Et , 440 F. App'x 432 ( 2011 )

Case: 11-30172 Document: 00511600788 Page: 1 Date Filed: 09/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 13, 2011
No. 11-30172
Summary Calendar Lyle W. Cayce
Clerk
MERVIN SPENCER,
Plaintiff - Appellant
v.
ST. JOHN THE BAPTIST PARISH; WAYNE L. JONES; UNIDENTIFIED
PARTIES; DALE PICKETT; WALTER CHAPELLE; ROBERT BECNEL;
BARRY LANDRY; RICHARD B. STRICKS; EDWIN D. HAWKINS; J.
STERLING SNOWDY,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CV-2831
Before GARZA, SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
Mervin Spencer, federal prisoner # 28914-034, moves this court for leave
to proceed in forma pauperis (IFP) in his appeal from the district court’s
dismissal of his complaint filed pursuant to 42 U.S.C. §§ 1983 and 1985. In his
complaint, Spencer argued that Louisiana state officials violated his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30172 Document: 00511600788 Page: 2 Date Filed: 09/13/2011
No. 11-30172
constitutional rights when they did not return his personal property or provide
him just compensation for his personal property.
The district court may deny a motion for leave to appeal IFP by certifying
that the appeal is not taken in good faith and by providing written reasons for
the certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED.
R. APP. P. 24(a). If a prisoner opts to challenge the district court’s certification
decision, the prisoner may file a motion in the court of appeals for leave to
proceed IFP, which “must be directed solely to the trial court’s reasons for the
certification decision.” See Baugh, 117 F.3d at 202. This court, however, may
dismiss the appeal as frivolous when it is apparent that an appeal would be
meritless. Id. at 202 n.24; 5TH CIR. R. 42.2.
The district court adopted the findings and conclusions of the magistrate
judge and dismissed Spencer’s complaint as frivolous. Thus, we review the
dismissal for abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999).
Spencer’s complaint was dismissed after a determination that his claims
were prescribed. Spencer fails to address or challenge the reasoning for
dismissing his complaint – his claims were time barred. Although pro se briefs
are afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972),
even pro se litigants must brief arguments in order to preserve them. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). By failing to brief an argument
challenging the basis of the district court’s dismissal of his complaint, Spencer
has waived any such challenge on appeal. See id.; Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (stating that failure to
identify any error in the district court’s analysis is the same as if the appellant
had not appealed the judgment). Moreover, Spencer has not demonstrated that
the district court’s dismissal of his complaint as frivolous was an abuse of
discretion.
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No. 11-30172
Spencer is cautioned that the dismissal of his suit by the district court and
the dismissal of his appeal count as strikes pursuant to 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). He is further
cautioned that if he accumulates three strikes under § 1915(g), he will not be
able to proceed in forma pauperis 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 AS FRIVOLOUS; SANCTION
WARNING ISSUED.
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