     Case: 11-30996     Document: 00511841058         Page: 1     Date Filed: 05/01/2012




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

                                                                            FILED
                                                                            May 1, 2012
                                     No. 11-30996
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALPHONSE SMITH,

                                                  Plaintiff-Appellant

v.

EAST BATON ROUGE POLICE DEPARTMENT, Investigation Officers;
HILLAR MOORE, III; MICHAEL R ERWIN,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-135


Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Alphonse Smith, Louisiana prisoner # 123368, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal
of his 42 U.S.C. § 1983 complaint. The district court dismissed Smith’s claims
pursuant to 28 U.S.C. § 1915(e), reasoning that they were barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), and, alternatively, the defendants were
not legally liable for the claims under § 1983. For the same reasons, the district


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30996    Document: 00511841058      Page: 2   Date Filed: 05/01/2012

                                  No. 11-30996

court denied Smith’s motion to appeal IFP and certified that his appeal was not
taken in good faith. By moving for leave to proceed IFP, Smith is challenging
the district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
      Smith asserts that the district court erred by failing to give written
reasons for its certification decision beyond those contained in the magistrate
judge’s report and recommendation, which was adopted by the district court.
This assertion is unavailing, as the district court’s certification decision
expressly incorporated by reference the reasoning of the report and
recommendation. See Baugh, 117 F.3d at 202 & n.21. Smith’s remaining
assertions do not present any challenge to the grounds of the district court’s
certification decision. Although pro se briefs are liberally construed, even pro se
litigants must brief arguments in order to preserve them. Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993). Smith has not shown that the district court’s
certification was incorrect, and his motion for leave to proceed IFP is denied. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The instant appeal is
without arguable merit and is dismissed as frivolous. See Baugh, 117 F.3d at
202 n.24; Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2.
      We caution Smith that the dismissal of his § 1983 suit by the district court
pursuant to § 1915(e) and our dismissal of this appeal as frivolous both count as
strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Smith is also cautioned that if he accumulates three strikes under
§ 1915(g), 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).
      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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