     Case: 13-11049      Document: 00512529028         Page: 1    Date Filed: 02/11/2014




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

                                                                                   FILED
                                      No. 13-11049                         February 11, 2014
                                                                              Lyle W. Cayce
BABU S. KALLUVILAYIL,                                                              Clerk

                                                 Plaintiff-Appellant

v.

BARBARA M. G. LYNN, Honorable Judge, U.S. District Judge, Northern
District of Texas, Dallas Division; IRMA CARRILLO RAMIREZ, Magistrate
Judge, Northern District of Texas, Dallas Division,,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:13-CV-137


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Babu S. Kalluvilayil, Texas prisoner # 584945, moves for leave to proceed
in forma pauperis (IFP) on appeal and for the appointment of counsel. He filed
this 42 U.S.C. § 1983 action against District Court Judge Barbara M.G. Lynn
and Magistrate Judge Irma Carrillo Ramirez, both of the Northern District of
Texas, Dallas Division. He challenged the magistrate judge’s and the district



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11049

court judge’s actions in denying his various motions filed in his 28 U.S.C.
§ 2254 proceeding and in denying his § 2254 application, arguing that they had
violated his rights to due process and equal protection. He asserted that the
defendants must be disqualified because they did not follow the Federal Rules
of Civil Procedure and were biased and prejudiced.
      The district court dismissed Kalluvilayil’s complaint as frivolous and for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A.
Noting that Kalluvilayil’s allegations concerned the actions the defendants
took in their official capacities as judges, the district court determined that the
defendants were entitled to absolute immunity for judicial acts performed in
his habeas proceeding and that Kalluvilayil’s claim for monetary damages
should be dismissed as frivolous. The district court further ruled that his
request for injunctive relief in the form of removal of the defendants from his
case and appointment of another judge, as well as his requests for discovery,
an evidentiary hearing, expansion of the record, and appointment of counsel in
his habeas proceeding should be denied. Denying Kalluvilayil’s motion for
leave to proceed IFP on appeal, the district court determined that the appeal
was not taken in good faith for the reasons given in its order of dismissal and
informed Kalluvilayil that he could challenge the court’s finding under Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      By moving to proceed IFP, Kalluvilayil is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh, 117 F.3d at
202. Our inquiry into an appellant’s 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) (internal
quotation marks and citation omitted). We may dismiss the appeal under 5th




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Circuit Rule 42.2 if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R.   42.2.
        Kalluvilayil makes no arguments challenging the reasons for the district
court’s dismissal of his claims for damages or injunctive relief, and he does not
address the “trial court’s reasons for the certification decision.” See Baugh, 117
F.3d at 202. 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 Kalluvilayil has
failed to challenge any 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 issues of this appeal.           See
Brinkmann, 813 F.2d at 748. Thus, the appeal lacks arguable merit and is
therefore frivolous. See Howard, 707 F.2d at 220. Accordingly, Kalluvilayil’s
motions for IFP and appointment of counsel are denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
        We hereby inform Kalluvilayil that the dismissal of this appeal as
frivolous counts as a strike for purposes of § 1915(g).        See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). The dismissal of his complaint
by the district court as frivolous and for failure to state a claim also counts as
a strike.    Id. at 387-88.   Kalluvilayil has four previous strikes per the
dismissals by the district court and this court in Kalluvilayil v. Texas Board of
Pardons and Paroles, No. 13-11005 and Kalluvilayil v. Burns, No. 13-11050.
Because Kalluvilayil 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



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he is under imminent danger of serious physical injury.            See § 1915(g).
Kalluvilayil 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 NOTED;
SANCTION WARNING ISSUED.




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