Farish v. Lynx

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 10, 2023
• Docket: 21-51223
• Status: Unpublished

Opinion

Case: 21-51223 Document: 00516604400 Page: 1 Date Filed: 01/10/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

FILED No. 21-51223 January 10, 2023 ____________ Lyle W. Cayce Bryan Farish, Clerk

Plaintiff—Appellant,

versus

Matthew Lynx, Contract Psychiatrist, Kerr County Jail; Ms. J. Cavin, Mental Health Supervisor, Kerr County Jail; Andrew Blizzard, Assistant Jail Administrator, Kerr County Jail; Sylvia Foraker, Jail Administrator, Kerr County Jail; Cris Lalonde, Chief Deputy, Kerr County Sheriff Department,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 5:21-CV-680 ______________________________

Before Haynes, Engelhardt, and Oldham, Circuit Judges. Per Curiam: * Bryan Farish, Texas prisoner # 2352989, moves for leave to proceed in forma pauperis (IFP) from the dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim. In his IFP motion and

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-51223 Document: 00516604400 Page: 2 Date Filed: 01/10/2023

No. 21-51223

incorporated brief, Farish conclusorily asserts that the district court erred in determining in its order denying IFP that his appeal of the dismissal of his § 1983 amended complaint was not taken in good faith and in determining that he was no longer confined. However, the district court’s amended order denying IFP omitted the original order’s statement that Farish was no longer confined, and Farish has otherwise failed to brief any challenge to the district court’s reasons for disposing of his claims as frivolous and for failure to state a claim and for certifying that his appeal was not taken in good faith. As a result, he has abandoned any challenge to these determinations, and he has not presented a nonfrivolous issue for appeal. See McGarrah v. Alford, 783 F.3d 584, 584 (5th Cir. 2015); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, his motion to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2. This dismissal of this appeal as frivolous and the district court’s dismissal as frivolous and for failure to state a claim each count as a strike under 28 U.S.C. § 1915(g). See McGarrah, 783 F.3d at 584. Farish is WARNED that if he accumulates three strikes, he will be “barred from proceeding 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.” Id. at 585; § 1915(g).