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

                                                 FILED
                                                                           August 26, 2009
                                     No. 08-30872
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk



COINDELL BRYANT,

                                                   Plaintiff-Appellant

v.

DOUG GOSS, Sergeant; MICKEY GUIDRY, Sergeant; JEFFREY TRAVIS,
Warden,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-CV-2166


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Coindell Bryant, Louisiana prisoner # 459459, moves this court for leave
to appeal in forma pauperis (IFP) following the dismissal of his civil rights
complaint. He also moves this court for the appointment of counsel on appeal.
       Bryant’s motion for leave to appeal IFP is construed as a challenge to the
district court’s determination that the appeal is not taken in good faith. See



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30872

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
whether the appeal is taken in good faith “is limited to whether the appeal
involves ‘legal points arguable on their merits (and therefore not frivolous).’”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). If the court
upholds the district court’s certification that the appeal is not taken in good
faith, Bryant must pay the appellate filing fee or the appeal will be dismissed for
want of prosecution. See Baugh, 117 F.3d at 202. However, if the appeal is
frivolous, this court may dismiss it sua sponte under 5th Cir. R. 42.2. Id. at
n.24.
        To the extent that Bryant has not waived the argument by failing to
properly brief it, the record before this court supports the district court’s
determination that Bryant’s excessive-force claim properly was dismissed for
failure to exhaust. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); 42
U.S.C. § 1997e. Because the appeal does not present any legal points arguable
on their merits, Bryant’s motion for leave to proceed IFP is denied and the
appeal dismissed as frivolous. See Baugh, 117 F.3d at 202 & n. 24. Bryant’s
motion for the appointment of counsel also is denied.
        MOTIONS DENIED; APPEAL DISMISSED.




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