Case: 19-10290       Document: 00515541591           Page: 1      Date Filed: 08/26/2020




            United States Court of Appeals
                 for the Fifth Circuit                                     United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                            August 26, 2020
                                   No. 19-10290
                                                                             Lyle W. Cayce
                                                                                  Clerk
 Derrick Adrian Johnson,

                                                               Plaintiff—Appellant,

                                        versus

 United States of America; United States Department of
 Justice Northern District of Texas, Dallas;
 United States Attorney
 for the Northern District of Texas, Dallas,

                                                            Defendants—Appellees.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:18-CV-1329


 Before Higginbotham, Smith, and Oldham, Circuit Judges.
 Per Curiam:*
        Derrick Johnson, federal prisoner #36454-177, moves to proceed in
 forma pauperis (“IFP”) to appeal the dismissal of 28 U.S.C. § 1331 complaint
 for monetary damages for failure to state a claim and for seeking monetary


        *
           Pursuant to Fifth Circuit Rule 47.5, the court has determined that this
 opinion should not be published and is not precedent except under the limited circum-
 stances set forth in Fifth Circuit Rule 47.5.4.
Case: 19-10290      Document: 00515541591         Page: 2    Date Filed: 08/26/2020




                                  No. 19-10290


 relief against defendants who are immune from such relief, per 28 U.S.C.
 § 1915(e)(2)(B). Johnson also moves for an expedited ruling.
        By moving to proceed IFP, Johnson 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 into good faith “is limited to
 whether the appeal involves legal points arguable on their merits (and there-
 fore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (inter-
 nal quotation marks and citation omitted).
        In his complaint, Johnson sought financial compensation for property
 he alleged was taken from him after he was arrested. Johnson was given the
 opportunity to supplement his complaint through a questionnaire, and he
 stated he was seeking monetary damages solely under § 1331.
        Johnson has not shown that his appeal of the ruling that he failed to
 state a claim under § 1331 against any defendant for monetary damages in-
 volves legal points arguable on the merits. See Howard, 707 F.2d at 220.
 Further, although the district court went on to determine that amendment of
 the complaint would be futile because an action for monetary damages under
 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
 (1971), or 42 U.S.C. § 1983 would be time-barred, Johnson does not address
 that determination and has therefore waived any challenge to it. See Brink-
 mann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
        Accordingly, the motion for leave 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. The motion for an expedited ruling is denied.
        The dismissal as frivolous counts as a strike for purposes of § 1915(g).
 See Adepegba v. Hammons, 103 F.3d 383, 387−88 (5th Cir. 1996), abrogated in
 part on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759, 1762−63 (2015).
 Johnson is warned that if he accumulates three strikes under § 1915(g), he




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                                  No. 19-10290


 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).




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