     Case: 10-50878     Document: 00511521447         Page: 1     Date Filed: 06/27/2011




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

                                                                            FILED
                                                                           June 27, 2011
                                     No. 10-50878
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ENZIO A. POWELL, II,

                                                  Plaintiff-Appellant

v.

FRED CLARK; CATHY COMPTON; ERICK BOYDE,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CV-349


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Enzio A. Powell, II, Texas prisoner # 1150991, requests authorization to
proceed in forma pauperis (IFP) on appeal from the district court’s judgment
dismissing his 42 U.S.C. § 1983 complaint with prejudice as frivolous pursuant
to 28 U.S.C. § 1915(e). Powell alleged that the defendants–a state court judge,
prosecutor, and appointed defense counsel–conspired to unconstitutionally
obtain his guilty plea conviction for sexual assault. The district court dismissed
the complaint as frivolous on grounds of, inter alia, judicial and prosecutorial

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50878

immunity, and because Powell’s claims were barred by Heck v. Humphrey, 512
U.S. 477, 486-87 (1994). The district court denied Powell’s request for leave to
proceed IFP on appeal, certifying that the appeal was not taken in good faith.
      We construe Powell’s motion to proceed IFP as a challenge to the district
court’s certification that the appeal is frivolous. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED . R. APP. P. 24(a)(3). Our
inquiry into Powell’s good faith “is limited to whether the 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).
      Powell conclusionally asserts that the district court erred in finding that
the defendants were entitled to immunity from his claims. He makes no
mention of the district court’s determination that his claims were barred under
Heck v. Humphrey. Pro se briefs are afforded liberal construction. See 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 the decision. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Because Powell has failed to challenge any factual or legal aspect of the
district court’s disposition of the claims raised in his complaint or the
certification that his appeal is not taken in good faith, he has abandoned the
critical issue of his appeal. See Brinkmann, 813 F.2d at 748. Thus, the appeal
lacks arguable merit. See Howard, 707 F.2d at 220.
      Accordingly, Powell’s IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.
The district court’s dismissal of Powell’s complaint and our dismissal of this
appeal both count as strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Powell is CAUTIONED that
if he accumulates three strikes, he will not be allowed to proceed IFP in any civil



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                                  No. 10-50878

action or appeal filed while he is detained or incarcerated in any facility unless
he is under imminent danger of serious physical injury.




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