Sneed v. Hulvey

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 2000
• Docket: 99-10879
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10879 Conference Calendar

LUTHER BIRL SNEED, JR.,

Plaintiff-Appellant,

versus

NFN HULVEY, Captain; NFN DENTON, Library Attendant; NFN TARRANT COUNTY OFFICIALS,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CV-1076 - - - - - - - - - - February 16, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Luther Birl Sneed, Jr., Texas prisoner # 699758, has filed a

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

following the dismissal of his complaint pursuant to 28 U.S.C.

§ 1915A(b)(1). By moving for IFP status, Sneed 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10879 - 2 -

Sneed’s brief does not provide any argument that the

district court erred in dismissing his complaint under

§ 1915A(b)(1) on the ground that it was frivolous, malicious, or

failed to state a claim. He states only that he “was not allowed

to confront the defendants” and that the case was being dismissed

because he was indigent and a pauper. Even a pro se appellant

must brief an issue to preserve it for appellate review. Yohey

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

uphold the district court’s order certifying that the appeal was

not taken in good faith. Sneed’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.

Sneed’s motions for excusable neglect and to remove

sanctions are inapplicable to this appeal. We have reviewed the

record, and it confirms that the district court did not impose

sanctions in the instant case. These motions are DENIED.

The district court’s dismissal of Sneed’s § 1983 action

under § 1915A(b)(1) counts as a “strike” for purposes of 28

U.S.C. § 1915(g), and the dismissal of this appeal as frivolous

also counts as a “strike” for purposes of § 1915(g). See

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

is warned that if he accumulates a third “strike” 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).

MOTIONS DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.