Johnny Reader v. United States , 705 F. App'x 281 ( 2017 )

Case: 17-40123 Document: 00514256132 Page: 1 Date Filed: 11/30/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 17-40123 FILED
November 30, 2017
Lyle W. Cayce
JOHNNY LEE READER, Clerk
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:16-CV-37
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Johnny Lee Reader, federal prisoner # 17905-078, has applied for leave
to appeal in forma pauperis (IFP) from the district court’s order granting in
part and denying in part his motion requesting the return of property. By
moving to procced IFP, Reader challenges the district court’s determination
that his appeal has not been brought 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40123 Document: 00514256132 Page: 2 Date Filed: 11/30/2017
No. 17-40123
Reader asserts that he is challenging the constitutionality and subject
matter jurisdiction of the Government’s seizure of his property. However, his
abbreviated IFP filing contains no argument on the issue whether the
forfeiture comported with due process, which was the only issue for the district
court’s review. See United States v. Robinson, 434 F.3d 357, 362 (5th Cir.
2005). Reader has therefore abandoned any challenge to the district court’s
determination on that issue, see Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987), and he has thus failed to demonstrate
that his appeal raises legal points that are arguable on the merits and thus
nonfrivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Because
Reader has not shown that his appeal involves a nonfrivolous issue, we deny
his motion to proceed IFP on appeal and dismiss the appeal as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
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, 387-88 (5th
Cir. 1996). Reader is warned that if he accumulates three strikes under
§ 1915(g) he will not be allowed to 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).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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