     Case: 14-30278      Document: 00513456178         Page: 1    Date Filed: 04/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30278
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RAYMOND PAYTON,                                                              April 7, 2016
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant            Clerk

v.

BLAIR’S BAIL BONDS, INCORPORATED,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-4931


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Raymond Payton, Louisiana prisoner # 107479, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim upon which relief
may be granted. He has also filed what he styles as a request for a settlement
in good faith.
      The district court denied Payton leave to appeal IFP and certified that
this appeal was not taken in good faith because Payton’s pleadings failed to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30278

allege a proper basis for relief under § 1983. In dismissing Payton’s § 1983
suit, the district court determined that Payton did not state a cognizable § 1983
action because Payton’s allegations did not establish that the defendant, a
private business, acted under the color of state law.
     By moving to proceed IFP, Payton 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).       Payton does not brief any argument
challenging the district court’s determination that his complaint failed to state
a claim under § 1983 because his allegations did not show that the defendant
acted under the color of state law.         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, 224-25 (5th Cir. 1993). Payton has not
shown that the district court’s certification was incorrect.
     Payton’s IFP motion is denied. The instant appeal is without arguable
merit, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and is dismissed
as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. “[T]he under-
color-of-state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 50 (1999). Payton’s motion for a settlement in good
faith is denied.
     A prisoner is not eligible to proceed IFP in a civil action or on appeal from
a judgment in a civil action if he has on three or more prior occasions, while
incarcerated or detained in a facility, “brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g).   For purposes of § 1915(g), a “prisoner” includes “any person



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                                  No. 14-30278

incarcerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law.”
§ 1915(h).
     As a prisoner, Payton has filed at least three other § 1983 actions that
were dismissed by the district court as frivolous and/or for failure to state a
claim upon which relief may be granted: Payton v. Wright, No. 2:13-CV-181
(E.D. La. Aug. 26, 2013); Payton v. Cannizarro, No. 2:13-CV-406 (E.D. La. Aug.
13, 2013); and Payton v. Gusman, No. 2:12-CV-2578 (E.D. La. Oct. 7, 2012).
Payton did not file an appeal in any of those cases, and they each count as a
strike under § 1915(g). The district court’s dismissal of Payton’s instant § 1983
suit and this court’s dismissal of this appeal as frivolous also both count as
strikes for purposes of § 1915(g).
     Thus, Payton has accumulated at least three strikes under § 1915(g) and
is barred from proceeding 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).     Payton is warned that frivolous,
repetitive, or otherwise abusive filings will invite the imposition of additional
sanctions, which may include dismissal, monetary sanctions, and restrictions
on his ability to file pleadings in this court and any court subject to this court’s
jurisdiction. Payton is further warned that he should review any pending
appeals and actions and move to dismiss any that are frivolous.
     APPEAL        DISMISSED;        IFP     MOTION         DENIED;      MOTION
REQUESTING SETTLEMENT DENIED; § 1915(g)                         BAR IMPOSED;
SANCTION WARNING ISSUED.




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