     Case: 16-60538      Document: 00514036194         Page: 1    Date Filed: 06/16/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-60538                                 FILED
                                                                               June 16, 2017

EDDIE JOSEPH BROWN,                                                           Lyle W. Cayce
                                                                                   Clerk
                                                 Plaintiff-Appellant

v.

THERESSIA LYONS; DAWN STOUGH; ROBERT MCCORMICK; MITCH
OWEN; DIANNE HERMAN-ELLIS; GEORGE HUFFMAN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:16-CV-145


Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Eddie Joseph Brown, Mississippi prisoner # 87813, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his pro se civil
rights lawsuit filed pursuant to 42 U.S.C. §§ 1983, 1985(2)-(3), and 1986.
Applying 28 U.S.C. § 1915(e)(2)(B)(ii), the district court dismissed Brown’s suit
for failure to state a claim on which relief may be granted. The district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60538

further denied Brown leave to proceed IFP on appeal, certifying that this
appeal was not taken in good faith under § 1915(a)(3).
      By moving to proceed IFP in this court, Brown 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). “When [a] prisoner opts to challenge
the certification decision, the [IFP] motion must be directed solely to the trial
court’s reasons for the certification decision.” Id. In evaluating whether the
appeal is taken in good faith, the relevant inquiry is “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).    “[W]here the merits are so intertwined with the
certification decision as to constitute the same issue,” we may deny the IFP
motion and dismiss the appeal sua sponte if it is frivolous. Baugh, 117 F.3d at
202 & n.24; 5TH CIR. R. 42.2.
      In the brief supporting his IFP motion, Brown describes his suit as
asserting that the defendants, which include his defense counsel and the
prosecutors involved in his 2012 Mississippi state jury trial and conviction,
conspired to deprive him of his liberty without due process by falsely entering
an indictment when in fact no grand jury was meeting at the time the
indictment was handed down. Brown acknowledges that the district court
dismissed his case with prejudice because his claims, if successful, would
necessarily imply the invalidity of his still-valid 2012 conviction. Brown fails,
however, to assert any substantive challenge to this reasoning by the district
court, which also serves as the basis for its lack-of-good-faith certification.
Brown has thus failed to brief, and thereby abandoned, any challenge to the
district court’s certification that his appeal is not taken in good faith. See




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                                 No. 16-60538

Baugh, 117 F.3d at 202; Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(holding that even pro se arguments must be briefed to be preserved).
      Brown’s sole argument in support of his IFP motion is that the district
court was precluded from dismissing his action sua sponte prior to service of
process because he had paid a partial filing fee. However, § 1915(e)(2)(B)(ii)
expressly provides that, “[n]otwithstanding any filing fee, or any portion
thereof, that may have been paid,” a complaint filed by a prisoner shall be
dismissed by the district court “at any time” upon its determination that,
among other things, the action fails to state a claim. Brown’s argument on this
point thus clearly lacks merit and does not constitute a nonfrivolous issue for
appeal. See Howard, 707 F.2d at 220.
      In light of the foregoing, the district court did not err in denying Brown’s
IFP motion, since his appeal does not involve legal points arguable on their
merits and is thus not taken in good faith. See id. at 219-20. Accordingly,
Brown’s IFP motion is DENIED and the appeal is DISMISSED AS
FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The
dismissal of the complaint by the district court for failure to state a claim and
the dismissal of this appeal as frivolous both count as strikes for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Brown is WARNED that, if he accumulates three strikes, he will not be allowed
to proceed IFP in any civil action or appeal while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).




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