Turner v. Cain, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30229

CARLWYNN J. TURNER,

Plaintiff-Appellant

v.

N. BURL CAIN; DARREL VANNOY; LESLIE DUPONT,

Defendants-Appellees

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:12-CV-598

Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM:
*

Carlwynn J. Turner, Mississippi prisoner # 94983, seeks to proceed in
forma pauperis (IFP) on appeal of the denial of his 42 U.S.C. § 1983 civil rights
complaint. By moving to proceed IFP, Turner is challenging the district court’s
certification that his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Turner’s good faith “is
limited to whether the appeal involves legal points arguable on their merits

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 28, 2020

Lyle W. Cayce
Clerk
Case: 19-30229 Document: 00515431510 Page: 1 Date Filed: 05/28/2020

No. 19-30229
2
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted).
Turner fails to address any of the district court’s conclusions underlying
its certification decision and does not provide any arguments challenging that
decision. Pro se briefs are afforded liberal construction. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993). Nevertheless, when an appellant fails to
identify any error in the district court’s analysis, it is the same as if he had not
appealed. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987). Because Turner has failed to challenge any factual or legal
aspect of the district court’s grant of summary judgment to the defendants or
the certification that his appeal is not taken in good faith, he has abandoned
the critical issue of his appeal. See id. Thus, the appeal lacks arguable merit.
See Howard, 707 F.2d at 220.
Accordingly, the IFP motion is DENIED. Additionally, because this
appeal is frivolous, it is DISMISSED. See 5
TH CIR. R. 42.2; Baugh, 117 F.3d at
202 n.24. Our dismissal of this appeal counts as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Turner is CAUTIONED that if he accumulates three strikes, he will not be
allowed to proceed IFP in any civil action or appeal filed while he is detained
or incarcerated in any facility unless he is under imminent danger of serious
physical injury.
Case: 19-30229 Document: 00515431510 Page: 2 Date Filed: 05/28/2020