     Case: 17-50453      Document: 00514400099         Page: 1    Date Filed: 03/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-50453
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                       March 23, 2018
                                                                         Lyle W. Cayce
MICHAEL L. PRICE,                                                             Clerk


                                                 Plaintiff-Appellant

v.

JUDGE BOBBY L. CUMMINGS; DISTRICT ATTORNEY DUSTY BOYD;
DISTRICT ATTORNEY PHILLIP ZEIGLER; DISTRICT CLERK JANICE
GRAY; FRANK B. PRICE; SHERIFF JOHNNY BURKS,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:17-CV-60


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Michael L. Price, Texas prisoner # 521845, filed this 42 U.S.C. § 1983
civil rights complaint against Judge Bobby L. Cummings; District Attorneys
Dusty Boyd and Phillip Zeigler; Attorney Frank Price; District Clerk Janice
Gray; Sheriff Johnny Burks; unnamed district court clerks and deputy clerks,
court reporters, and deputy sheriffs; and the “Director of TDCJ Senior Warden


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50453    Document: 00514400099     Page: 2   Date Filed: 03/23/2018


                                 No. 17-50453

W.P. Clements Unit” in their individual capacities, alleging that his conviction,
judgment, and sentence were illegal and unconstitutional because they were
based on a “void” indictment and that the defendants had violated Texas law
and procedures. Price sought as relief immediate release from confinement;
expungement of his sentence, judgment, and conviction; and monetary
damages in the amount of $100,000,000.
      The district court concluded that Price’s complaint was frivolous and
dismissed his claims with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). The
district court determined that Judge Cummings was entitled to absolute
judicial immunity; that the district attorneys were entitled to absolute
prosecutorial immunity; that attorney Frank Price was not alleged to be a state
actor; that Price had alleged no personal involvement on the part of District
Clerk Janice Gray, Sheriff Johnny Burks, any other unnamed clerks or
sheriffs, or the Senior Warden of W.P Clements Unit; and that his claims for
money damages were barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). The district court noted that to the extent Price sought release from
confinement and expungement of his conviction and sentence, Price could seek
such relief in an application for habeas corpus after exhaustion of his state
remedies.
      A district court must sua sponte dismiss an IFP § 1983 complaint if the
action is malicious or frivolous, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from suit.
§ 1915(e)(2)(B). A dismissal as frivolous under § 1915(e)(2)(B) is reviewed for
an abuse of discretion. Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998).
      Price argues that he sued the defendants in their individual capacities
so as to overcome any claim of Eleventh Amendment immunity. He contends
that the defendants could never have acquired immunity because his



                                       2
    Case: 17-50453       Document: 00514400099   Page: 3   Date Filed: 03/23/2018


                                  No. 17-50453

indictment was void, defective, and unconstitutional because state laws were
violated. Price’s arguments concerning Eleventh Amendment immunity are
misplaced because the district court did not rely on Eleventh Amendment
immunity to dismiss his claims. Price’s assertion that he never alleged that
Frank Price was a state actor confirms the correctness of this aspect of the
district court’s ruling. Price’s arguments in his original brief do not address
the other aspects of the district court’s ruling concerning no personal
involvement by the other named defendants, the Heck bar, or the requirement
to seek habeas relief.
      Pro se briefs are afforded liberal construction. Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993). Nevertheless, 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 County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Because Price has failed to challenge any
legal aspect of the district court’s disposition of the claims raised in his
complaint, he has abandoned the critical issues of this appeal. See Brinkmann,
813 F.2d at 748. Because Price’s appeal presents no legal points arguable on
their merits, the appeal is DISMISSED as frivolous. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
      Price has filed numerous motions to file supplemental briefs and motions
seeking other relief. These motions seek relief which this court has no power
to grant, and the supplemental briefs add nothing of relevance to the
arguments raised in Price’s original brief as they pertain to the district court’s
dismissal of his § 1983 claims. All outstanding motions are DENIED.
      We hereby inform Price that the dismissal of this appeal as frivolous
counts as a strike for purposes of § 1915(g), in addition to the strike for the
district court’s dismissal. See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64



                                        3
    Case: 17-50453      Document: 00514400099   Page: 4   Date Filed: 03/23/2018


                                 No. 17-50453

(2015); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Price also
has at least two previous strikes based on the dismissal as frivolous by the
district court in Price v. Caroll, No. 6:17-cv-59 (W.D. Tex. Apr. 10, 2017), and
our dismissal as frivolous of his appeal from that judgment, which we issue
simultaneously today (No. 17-50337). See Coleman, 135 S. Ct. at 1763.
      Because Price has now accumulated at least three strikes under
§ 1915(g), he may not proceed IFP in any civil action or appeal filed in a court
of the United States while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g). Price
is further warned that any pending or future frivolous or repetitive filings in
this court or any court subject to this court’s jurisdiction may subject him to
additional sanctions.
      MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED;
SANCTION WARNING ISSUED.




                                       4
