Darryl Parker v. Thomas Butler , 357 F. App'x 606 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2009
No. 09-30357
Summary Calendar Charles R. Fulbruge III
Clerk
DARRYL D PARKER,
Plaintiff-Appellant
v.
THOMAS J BUTLER; A F ARMOND, JR.; SONNY ARMOND, JR.,
Defendants-Appellees
DARRYL D PARKER,
Plaintiff-Appellant
v.
JEFFERSON PARISH DISTRICT ATTORNEY’S OFFICE,
Defendant-Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CV-4422
USDC No. 2:08-CV-4419
No. 09-30357
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Darryl D. Parker, Louisiana prisoner # 300414, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal
of his consolidated 42 U.S.C. § 1983 complaints. The district court dismissed
Parker’s § 1983 claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), reasoning that
Parker’s claims against an assistant district attorney failed due to absolute
prosecutorial immunity, Parker failed to allege that his defense counsel acted
under the color of state law, and Parker’s § 1983 claims were barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). For the same reasons, the district court
denied Parker’s motion to appeal IFP and certified that Parker’s appeal was not
taken in good faith. By moving for leave to proceed IFP, Parker is challenging
the district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
Parker’s motion contains no argument challenging any of the grounds of
the district court’s certification decision. Although pro se briefs are liberally
construed, even pro se litigants must brief arguments in order to preserve them.
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Parker has not shown that
the district court’s certification was incorrect, and his motion for leave to proceed
IFP is denied. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The
instant appeal is without arguable merit and is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 219-20; 5 TH C IR. R. 42.2.
Parker is cautioned that the dismissal of his § 1983 suit by the district
court pursuant to § 1915(e)(2)(B)(i) and our dismissal of this appeal as frivolous
both count as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Parker is also cautioned that if he accumulates three
*
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.
2
No. 09-30357
strikes under § 1915(g), he may not 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).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
3