     Case: 17-40350      Document: 00514383766         Page: 1    Date Filed: 03/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 17-40350                             FILED
                                                                         March 13, 2018
                                                                          Lyle W. Cayce
HERSCHEL JEROME HURD,                                                          Clerk

                                                 Plaintiff-Appellant

v.

KAREN A. BARNETT; JOHNATHON D. CAMPBELL; TAWANNA A.
MONROE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-734


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Herschel Jerome Hurd, Texas prisoner # 1566322, filed a pro se and in
forma pauperis (IFP) 42 U.S.C. § 1983 complaint and amended complaint
against TDCJ-ID officers Karen A. Barnett, Johnathon D. Campbell, and
Tawanna A. Monroe, alleging various violations of his constitutional rights due
to the loss or confiscation of his personal property. Hurd also alleged that he
was denied meals due to the confiscation or deactivation of his prisoner


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-40350

identification card and that the defendants engaged in unlawful strip searches
and searches of his cell on numerous occasions. He alleged that the defendants’
actions were meant to retaliate against him and to harass him for having filed
grievances and violated his First, Fourth, Eighth, and Fourteenth Amendment
rights. Hurd sued the defendants in their official and individual capacities,
and he sought $7 million dollars in compensatory and punitive damages.
      The district court dismissed the complaint for failure to state a claim
upon which relief may be granted, finding, inter alia, that the defendants were
entitled to Eleventh Amendment immunity as well as qualified immunity. The
court denied Hurd permission to appeal IFP, certifying that the appeal was not
taken in good faith. See 28 U.S.C. § 1915(a)(3). By moving for IFP status,
Hurd is challenging the district court’s certification decision. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Hurd does not challenge the dismissal of his official capacities claims as
barred by the Eleventh Amendment and does not meaningfully address the
district court’s dismissal of his individual capacity claims as precluded by
qualified immunity. Accordingly, we consider these claims abandoned. See
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Hurd has failed to show that his 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 citations omitted). His IFP
motion is DENIED, and his appeal is DISMISSED as frivolous. See Baugh,
117 F.3d at 202 & n.24.
      The dismissal of this appeal as frivolous counts as a strike under
§ 1915(g). Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Hurd is
CAUTIONED that if he accumulates three strikes, he will no longer be allowed



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                                No. 17-40350

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).   Hurd’s motion for appointment of counsel is also
DENIED.




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