CARTER v. LIVINGSTON IV III UGI (2018)

George Carter, Texas prisoner #1561528, appeals the dismissal of his 42 U.S.C. § 1983 action against the defendants. He moves for leave to proceed in forma pauperis (“IFP”). By moving to proceed IFP in this court, Carter challenges the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Thus, his request “must be directed solely to the trial court’s reasons for the certification decision.” Id. An appeal is taken in good faith if it raises legal points that are arguable on the merits and thus non-frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

Although pro se briefs are afforded liberal construction, Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995), arguments must be briefed to be preserved, Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Carter fails to brief any response to the district court’s conclusions that he was allowed to pursue his administrative remedies with respect to his lost property and that his remaining claims were barred by Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 646–48, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), or by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

Because Carter fails to raise any legal issues arguable on their merits, the motion to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.

This dismissal counts as a strike under 28 U.S.C. § 1915(g). Coleman v. Tollefson, ––– U.S. ––––, 135 S.Ct. 1759, 1763–64, 191 L.Ed.2d 803 (2015). Carter is WARNED that if he accumulates three strikes, 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).

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.