Walters v. Dixon Correctional Institute , 188 F. App'x 232 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-30535
Conference Calendar
CURTIS WALTERS,
Plaintiff-Appellant,
versus
DIXON CORRECTIONAL INSTITUTE; JAMES M. LEBLANC; CONNIE KENNEDY;
IVY MILLER; CONNIE BOWSER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CV-48
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Curtis Walters, Louisiana prisoner # 293353, moves this
court for leave to proceed in forma pauperis (IFP) in his appeal
of the dismissal of his claims under 42 U.S.C. § 1983 against
Dixon Correctional Institute, James W. LeBlanc, and Connie
Kennedy for failure to state a claim upon which relief can be
granted and the dismissal of his claims against Ivy Miller and
Connie Bowser for failure to exhaust administrative remedies.
*
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this opinion should not be published and is not precedent except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. 05-30535
-2-
Walters’s 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). This
court’s 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, this court may dismiss it sua sponte under
5TH CIR. R. 42.2. Baugh, 117 F.3d at 202 n.24.
Walters argues that the district court erred in denying his
motion for a default judgment. The default judgment provisions
of Rule 55 address the failure of a party “to plead or otherwise
defend.” FED. R. CIV. P. 55(a). In this matter, the defendants
were never served with process. Absent proper service of
process, the district court lacked personal jurisdiction over the
defendants, and any default judgment against the defendants would
have been void. See Rogers v. Hartford Life and Accident Ins.
Co., 167 F.3d 933, 940 (5th Cir. 1999).
Walters briefs no argument concerning the dismissal of any
of the individual claims. Failure to identify an error in the
district court’s analysis is the same as if the appellant had not
appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). 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).
No. 05-30535
-3-
Because Walters 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. Walters’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.
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). Walters is cautioned that if
he accumulates three strikes, he will not be permitted 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 28 U.S.C. § 1915(g).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.