Morrison v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20150 Conference Calendar

DAVID J. MORRISON

Plaintiff-Appellant,

versus

GARY JOHNSON; VICTOR RODRIGUEZ,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-4028 -------------------- June 14, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Texas inmate, David J. Morrison, # 425314, has filed a

motion for leave to proceed in forma pauperis (IFP) on appeal,

following the district court’s dismissal as frivolous of his

civil rights action pursuant to 42 U.S.C. § 1983. By moving for

IFP status, Morrison is challenging the district court’s

certification that IFP status should not be granted on appeal

because his appeal is not taken 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-20150 -2-

Morrison has failed to challenge specifically the district

court’s finding that his appeal was not taken in good faith and

was legally frivolous. Although this court liberally construes

pro se briefs, see Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.

1995), the court requires arguments to be briefed in order to be

preserved. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

Because Morrison has failed to address the only appealable issue,

the district court’s certification of the appeal as frivolous, he

has abandoned the issue on appeal. See id.

Morrison’s request for IFP status 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 § 1915(g), as does the

district court’s dismissal of Morrison’s complaint as frivolous.

See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).

He therefore has two “strikes” under § 1915(g). Morrison is

WARNED that if he accumulates three “strikes” pursuant to

§ 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).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; STRIKE WARNING

ISSUED