MURPHY v. ABBOTT (2020)

Jacob Earl Murphy, Texas prisoner # 01805040, moves for leave to proceed in forma pauperis (IFP) from the denial of his postjudgment motion challenging the dismissal of his 42 U.S.C. § 1983 complaint. He also moves this court to seal the district court record.

By moving for leave to proceed IFP, Murphy is challenging 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). Our inquiry on appeal is restricted to whether “the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).

Murphy does not challenge the district court's determination that his claims for monetary damages were barred because he failed to overcome the bar set forth in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). When an appellant fails to identify any error in the district court's analysis, it is the same as if the appellant had not appealed that issue. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also Fed. R. App. P. 28(a)(8). Murphy therefore has abandoned any challenge to the district court's denial of his postjudgment motion. See Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).

Accordingly, Murphy's appeal does not present a nonfrivolous issue and has not been brought in good faith. See Howard, 707 F.2d at 220. Thus, the motion to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; see also 5th Cir. R. 42.2. His motion to seal the record is DENIED.

The district court's dismissal of Murphy's § 1983 complaint and our dismissal of this appeal as frivolous both count as strikes for purposes of 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 135 S. Ct. 1759, 1763-64, 191 L.Ed.2d 803 (2015); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Murphy is WARNED that if he accumulates three strikes, he will not be able to 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 28 U.S.C. § 1915(g).

FOOTNOTES

FOOTNOTE.  

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.