     Case: 15-40303      Document: 00513516503         Page: 1    Date Filed: 05/23/2016




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

                                      No. 15-40303
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 23, 2016

KENNETH N. CAIN,                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

LONNIE SMITH, Sergeant at Telford Unit; STATE OF TEXAS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:11-CV-144



Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
       Kenneth N. Cain, Texas prisoner # 1461710, requests leave to proceed in
forma pauperis (IFP) on appeal from the denial of his motion seeking relief
from the judgment dismissing his 42 U.S.C § 1983 civil rights complaint, in
which he alleged that Sergeant Lonnie Smith violated his Eighth Amendment
rights by using excessive force. By moving to proceed IFP, Cain is challenging
the district court’s certification that his appeal was not taken in good faith.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40303    Document: 00513516503     Page: 2   Date Filed: 05/23/2016


                                 No. 15-40303

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Cain’s
good faith “is limited to whether the appeal involves legal points arguable on
their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted).
      The district court construed Cain’s motion for reconsideration as a
Federal Rule of Civil Procedure 60(b) motion for relief from judgment and
denied the motion as untimely. In the alternative, the district court concluded
that the motion should also be denied because it lacked merit. Specifically, the
district court rejected Cain’s claims that it was required to hold an evidentiary
hearing before dismissing his complaint and that it erred in dismissing his
complaint in spite of the fact that his injuries were more than de minimis. We
review the denial of a Rule 60(b) motion for an abuse of discretion.         See
Thermacor Process, L.P. v. BASF Corp., 567 F.3d 736, 744 (5th Cir. 2009).
      To the extent that Cain attempts to challenge the district court’s
dismissal of his § 1983 complaint, the appeal from the denial of his Rule 60(b)
motion did not bring the underlying judgment up for review. See Bailey v.
Cain, 609 F.3d 763, 767 (5th Cir. 2010). Regarding the judgment properly
before us, Cain wholly fails to address the district court’s reasons for denying
his Rule 60(b) motion. Pro se briefs are afforded liberal construction. See
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 the decision. Brinkmann v. Dallas
Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Because Cain has failed to challenge any factual or legal aspect of the
district court’s denial of his Rule 60(b) motion or the certification that his
appeal is not taken in good faith, he has abandoned the critical issue of his
appeal. See id. Thus, the appeal lacks arguable merit. See Howard, 707 F.2d



                                       2
    Case: 15-40303   Document: 00513516503    Page: 3   Date Filed: 05/23/2016


                               No. 15-40303

at 220. Accordingly, Cain’s IFP motion is DENIED. Additionally, because this
appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2; Baugh, 117 F.3d
at 202 n.24. Cain’s motion for the appointment of counsel is DENIED. See
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). His motions for
reversal and remand and to compel discovery evidence are, likewise, DENIED.




                                     3
