     Case: 10-30675 Document: 00511384971 Page: 1 Date Filed: 02/16/2011




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

                                                    FILED
                                                                          February 16, 2011
                                       No. 10-30675
                                     Summary Calendar                       Lyle W. Cayce
                                                                                 Clerk

WASHINGTON MCCASKILL,

                                                   Plaintiff-Appellant

v.

W. RYDER; WARDEN JOE KEFFER;                               LIEUTENANT            CRITTLE;
L. LONGMORE; WILLIE VASQUEZ,

                                                   Defendants-Appellees


                       Appeal from the United States District Court
                          for the Western District of Louisiana
                                 USDC No. 1:09-CV-2149


Before BENAVIDES, CLEMENT and ELROD, Circuit Judges.
PER CURIAM * :
          Washington McCaskill, federal prisoner # 28453-034, moves this court for
leave to proceed in forma pauperis (IFP) in his appeal from the district court’s
dismissal of a Bivens1 action alleging claims of excessive force, failure to protect,
denial of medical treatment, retaliation, and denial of access to the courts. The



          *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
          1
              Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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                                   No. 10-30675

district court determined that McCaskill’s excessive force and failure to protect
claims were barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), and that
his remaining claims were frivolous. McCaskill’s motion to proceed IFP is
construed as a challenge to the district court’s certification that his appeal is
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); F ED. R. A PP. P. 24(a)(3). We ask only whether the appeal involves
legal points that are not frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983).
      McCaskill fails to offer any challenge to the district court’s reasons for its
certification decision. Instead, he argues that the denial of IFP was erroneous
because the district court cited its prior decisions in this case in support of its
determination that the appeal does not present a nonfrivolous issue.            It is
permissible for a “district court to incorporate by reference its decision[s]
dismissing the prisoner’s complaint on the merits . . . to fully apprise [this court]
of the reasons for its certification,” as the district court did in this case. Baugh,
117 F.3d at 202 n.21. Although we liberally construe pro se briefs, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments
in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
McCaskill’s failure to address the district court’s determination that his appeal
does not involve a nonfrivolous issue has the same effect as if he had not
appealed the judgment. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
      McCaskill has failed to show that his proposed appeal raises a
nonfrivolous issue. See Howard, 707 F.2d at 220. Accordingly, his IFP motion
is denied. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, see
Howard, 707 F.2d at 219-20, it is dismissed. See 5 TH C IR. R. 42.2. The dismissal
of this appeal and the district court’s dismissal of the complaint both count as
strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). McCaskill is cautioned that if he accumulates three

                                         2
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                                  No. 10-30675

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. See § 1915(g).


      IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.




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