Mackey v. City of San Antonio , 258 F. App'x 640 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 11, 2007
No. 07-50673
Conference Calendar Charles R. Fulbruge III
Clerk
RICKEY MACKEY
Plaintiff-Appellant
v.
CITY OF SAN ANTONIO; CHIEF ALBERT ORTIZ; NICK STROMBOE; PETER
OVALLE; DAVID NOUHAN
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:06-CV-796
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Rickey Mackey, Texas prisoner # 838026, moves this court for permission
to appeal in forma pauperis (IFP) from the dismissal of his civil rights complaint
against the City of San Antonio (the City); the former Chief of Police, Albert
Ortiz; and three San Antonio police officers, Nick Stromboe, Peter Ovalle, and
David Nouhan. Mackey alleged that on July 24, 2003, the defendant-officers
(1) entered his motel room without probable cause or a search warrant,
*
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should not be published and is not precedent except under the limited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. 07-50673
(2) conducted an illegal search and seizure, (3) failed to advise him of his
Miranda1 rights, and (4) coerced him into confessing. Mackey averred further
that Stromboe forged his name on the allegedly coerced confession and that the
defendant-officers committed perjury. Mackey alleged that the City failed to
implement a policy to prevent such constitutional violations and that Ortiz failed
to properly train and supervise the officers.
The district court determined that all of Mackey’s claims, save his claim
that the defendant-officers committed perjury, were barred by the applicable
two-year statute of limitations. The district court determined further that the
defendant-officers were entitled to absolute immunity with regard to Mackey’s
perjury claim.
Mackey’s IFP motion is construed as a challenge to the district court’s
determination that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken
in 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) (citation omitted). If the appeal is frivolous, we may dismiss it
sua sponte under 5TH CIR. R. 42.2. See Baugh, 117 F.3d at 202 n.24.
Mackey lists as issues the district court‘s determinations that his perjury
claim was barred by the doctrine of absolute immunity and that his remaining
claims were untimely. He does not specifically challenge the district court’s
analysis, nor does he provide an argument in support of his contention that the
district court erred in determining that he failed to present an arguable or
nonfrivolous issue for appeal. Although pro se briefs are afforded liberal
construction, see 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 address the basis for the district court’s
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Miranda v. Arizona, 384 U.S. 436 (1966).
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No. 07-50673
denial of IFP, Mackey has abandoned the issue. Id.; see also Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because Mackey has not demonstrated that his appeal raises legal points
that are arguable on the merits, we uphold the district court’s order certifying
that the appeal is not taken in good faith. Mackey’s IFP motion is denied, and
his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2. In light of the dismissal of the appeal, Mackey’s motions for production
of documents, supplementation of brief on appeal, and appointment of counsel
are denied.
The dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Mackey earned prior strikes in Mackey v. Stromboe, No. 5:05-CV-00904
(W.D. Tex. Mar. 31, 2006) and Mackey v. Gutierrez, 5:02-CV-00084 (W.D. Tex.
Apr. 10, 2003). As Mackey now has accumulated at least three strikes, he is
barred from proceeding IFP pursuant to § 1915 while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
MOTIONS DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
3