     Case: 13-40677      Document: 00512495386         Page: 1    Date Filed: 01/09/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 13-40677                           January 9, 2014
                                                                              Lyle W. Cayce
PATRICK JAMES HOWARD,                                                              Clerk


                                                 Plaintiff-Appellant

v.

A. DAVIS, Subordinate,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:12-CV-913


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Patrick James Howard, Texas prisoner # 1527296, moves in this court
for leave to proceed in forma pauperis (IFP) on appeal from the district
court’s dismissal with prejudice of his civil rights complaint filed under 42
U.S.C. § 1983. By moving to proceed IFP, Howard is challenging the district
court’s certification that the appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40677    Document: 00512495386        Page: 2   Date Filed: 01/09/2014


                                 No. 13-40677

      Other than a single-sentence, conclusional assertion that he did
exhaust his administrative remedies against Andrew Davis for excessive use
of force, Howard does not acknowledge or address the basis for the dismissal
of any of the claims alleged in his complaint. Even pro se litigants must brief
arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). Howard has thus waived any challenge to the dismissal of
his claims by failing to brief the reasons given for the dismissal. See id.; see
also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987) (stating that failure to identify any error in the district court’s
analysis is the same as if the appellant had not appealed the judgment).
      Howard has failed to show that his appeal involves “legal points
arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). Accordingly, his IFP motion
and his motion for the appointment of counsel are DENIED.                Howard’s
appeal is frivolous and is therefore DISMISSED. See id. at 219-20; 5TH CIR.
R. 42.2. The dismissal of Howard’s appeal counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Howard is cautioned 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 § 1915(g).
      IFP   MOTION      and   MOTION         FOR    THE      APPOINTMENT        OF
COUNSEL      DENIED;      APPEAL     DISMISSED;         SANCTION       WARNING
ISSUED.




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