     Case: 11-10454     Document: 00511635795         Page: 1       Date Filed: 10/18/2011




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

                                                                             FILED
                                                                          October 18, 2011
                                     No. 11-10454
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

GERARDO ESQUIVEL-SOLIS,

                                                  Plaintiff - Appellant

v.

NEUCES COUNTY SHERIFF DETENTION; BROOKS DETENTION CENTER;
BEE COUNTY CORRECTIONAL CENTER; KARNES CITY CORRECTIONAL
CENTER; HERLONG FEDERAL INSTITUTION; OKLAHOMA DISTRIBUTOR
CENTER,

                                                  Defendants - Appellees


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:09-CV-29


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Gerardo    Esquivel-Solis,      federal    prisoner     #    65064-179,       requests
authorization to proceed in forma pauperis (IFP) on appeal from the district
court’s judgment partially dismissing his federal complaint with prejudice as
frivolous under 28 U.S.C. § 1915(e). He asserted that he requested medical care



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10454    Document: 00511635795      Page: 2    Date Filed: 10/18/2011

                                  No. 11-10454

for his hernia at the various facilities in which he was incarcerated but was
provided only pain medication instead of surgery.
      The district court concluded that, to the extent that the complaint raised
claims under the Federal Tort Claims Act that were not barred by the applicable
statute of limitations, those claims should be dismissed without prejudice. The
district court further determined that, to the extent that the complaint alleged
that the defendants were deliberately indifferent to Esquivel-Solis’s serious
medical needs by denying surgery to repair his hernia, those claims should be
dismissed with prejudice as frivolous because Esquivel-Solis had not alleged a
cognizable constitutional claim. The district court also ordered that any claim
by Esquivel-Solis against prison officials in their individual capacities be
dismissed with prejudice as frivolous because such claims were barred by
sovereign immunity. The district court denied Esquivel-Solis’s request for leave
to proceed IFP on appeal, certifying that the appeal was not taken in good faith.
      We construe Esquivel-Solis’s motion to proceed IFP as a challenge to the
district court’s certification that the appeal is not taken in good faith. 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 Esquivel-Solis’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).
      Esquivel-Solis asserts that he will raise a nonfrivolous issue on appeal
with respect to his claim of deliberate indifference. However, he does not proffer
any argument on this issue and specifically does not identify a legal or factual
basis upon which the district court wrongly resolved the merits of his claims.
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. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).

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                                  No. 11-10454

      Because Esquivel-Solis 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 id. Thus, the appeal lacks arguable merit. See
Howard, 707 F.2d at 220.
      Accordingly, Esquivel-Solis’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 Esquivel-Solis’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). Esquivel-Solis is CAUTIONED
that if he accumulates three strikes, he will not be allowed to proceed IFP in any
civil 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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