     Case: 17-20151      Document: 00514430192         Page: 1    Date Filed: 04/16/2018




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

                                      No. 17-20151                               FILED
                                                                             April 16, 2018
                                                                            Lyle W. Cayce
CLINTON ARDS,                                                                    Clerk

                                                 Plaintiff-Appellant

v.

MAJOR       MARTIN;    CAPTAIN   DAVIDINSON;        DUICE/MEDICAL
DEPARTMENT; SERGEANT K. JOHNSON; SERGEANT FUELY, Internal
Affairs Division; SERGEANT JASPER, Internal Affairs Division; PAUL M.
MORGAN, Lawyer,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:17-CV-388


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Clinton Ards, Harris County inmate # 01088273, moves for leave to
proceed in forma pauperis (IFP) on appeal.              He filed a 42 U.S.C. § 1983
complaint against various employees of the Harris County Jail, alleging that
he had been deprived of a medically necessary cane.                  The district court
dismissed the action sua sponte under 28 U.S.C. § 1915A(b) for failure to state


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20151

a claim, based on Ards’s failure to exhaust administrative remedies. The court
also determined that Ards’s appeal was not taken in good faith.
      By moving to proceed IFP, Ards is challenging the district court’s good-
faith certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 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 if it is frivolous. See Baugh, 117 F.3d at
202 n.24.
      In his pleadings before this court, Ards argues that documentation in the
possession of jail officials would support his assertions that he was improperly
deprived of his cane. He does not challenge the district court’s conclusion that
he had failed to exhaust administrative remedies. Ards’s failure to brief the
basis for the district court’s dismissal and bad-faith determination is the same
as if he had not appealed the judgment at all. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). As a result, he has
waived any challenge to the district court’s IFP ruling. See id. Because Ards,
by failing to brief the issue, does not rebut the finding that his appeal lacks
arguable merit, we conclude that it is frivolous. See Baugh, 117 F.3d at 202
& n.24; Howard, 707 F.2d at 220. In light of this ruling, Ards’s motions for
appointment of counsel and for this court to obtain documents relating to the
merits of his claims are denied.
      The district court’s dismissal of Ards’s complaint for failure to state a
claim for which relief can be granted counts as a strike against him. See 28
U.S.C. § 1915(g). Additionally, the dismissal of this appeal as frivolous counts
as a second strike. Id.; Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Ards is warned that if he accumulates three strikes, he will not be able



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                                  No. 17-20151

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).
      IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
MOTIONS DENIED; SANCTIONS WARNING ISSUED.




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