     Case: 15-40678      Document: 00513523132         Page: 1    Date Filed: 05/26/2016




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


                                      No. 15-40678                                 FILED
                                                                               May 26, 2016
                                                                              Lyle W. Cayce
JEREMY A. DEAN,                                                                    Clerk

                                                 Plaintiff-Appellant

v.

DAWN MERCHANT, Warden, Correctional Institutions Division Barry B.
Telford Unit; JEFFERY CALFEE, Assistant Warden, Correctional Institutions
Division Barry B. Telford Unit; FREDERICK GOODEN, Captain, Correctional
Institutions Division Barry B. Telford Unit; MICHAEL PRESSNELLS,
Lieutenant, Correctional Institutions Division Barry B. Telford Unit;
ANTHONY L. GULLEY, Sergeant, Correctional Institutions Division Barry B.
Telford Unit; JIMMY WOOLERY; RAMEY PHILLIP,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:14-CV-44


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jeremy A. Dean, Texas prisoner # 854427, moves this court for
authorization to proceed in forma pauperis (IFP) in an appeal of the district
court’s judgment dismissing his 42 U.S.C. § 1983 action. Dean filed the action


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40678

complaining of alleged violations of his constitutional rights by employees of
the Texas Department of Criminal Justice. Specficially, Dean alleged claims
of excessive force, retaliation, the denial of “basic human needs,” and that he
was the victim of a false disciplinary case. The district court dismissed Dean’s
§ 1983 action in part as frivolous and for failure to state a claim upon which
relief may be granted. The district court also granted the defendants’ motion
for summary judgment on the basis of Dean’s failure to exhaust his
administrative remedies.
      In denying leave to appeal IFP, a district court may “incorporate by
reference its decision dismissing the prisoner’s complaint on the merits with or
without supplementation,” which is the procedure used in this case. See Baugh
v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997). By moving to proceed IFP,
Dean is challenging the district court’s certification that his appeal is not taken
in good faith. See id. at 202. Our 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) (internal quotation marks and citation omitted). By failing to
address the district court’s reasons for dismissing his § 1983 complaint or
providing any other reason why the district court’s certification is erroneous,
Dean has abandoned any challenge he might have raised regarding the district
court’s decision. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993);
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Dean’s appeal is without arguable merit and is thus frivolous.           See
Howard, 707 F.2d at 219-20. His IFP motion is therefore denied, and his
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2. Additionally, Dean’s motion for appointment of counsel is also denied.



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                                  No. 15-40678

      The district court’s partial dismissal of Dean’s complaint as frivolous and
for failure to state a claim counts as a strike under 28 U.S.C. § 1915(g). See
§ 1915(g). This court’s dismissal of Dean’s appeal as frivolous counts as an
additional strike. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Dean is cautioned that if he accumulates three strikes, he will not be
able to proceed 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).
      MOTIONS        DENIED;      APPEAL    DISMISSED       AS    FRIVOLOUS;
SANCTION WARNING ISSUED.




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