     Case: 11-10734     Document: 00511684691         Page: 1     Date Filed: 12/05/2011




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

                                                                            FILED
                                                                         December 5, 2011
                                     No. 11-10734
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALVIN HUGHES,

                                                  Plaintiff-Appellant

v.

CITY OF DALLAS,

                                                  Defendant-Appellee


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-352


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Alvin Hughes, Texas prisoner # 478107, moves for leave to proceed in
forma pauperis (IFP) on appeal following the district court’s denial of his IFP
motion and certification that his appeal was not taken in good faith. He seeks
to appeal the dismissal of his civil rights suit alleging that the City of Dallas
violated his rights under 42 U.S.C. § 1983, the Americans with Disabilities Act
(ADA), and Title VII of the Civil Rights Act of 1964 (Title VII) by taking an
adverse employment action against him because he was on dialysis. The district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10734

court dismissed the suit as frivolous and for failure to state a claim upon which
relief could be granted because, inter alia, (1) Hughes had failed to exhaust his
administrative remedies on the Title VII and ADA claims with the Equal
Employment Opportunity Commission, and (2) his § 1983 claim was not
sufficiently supported by facts.
      Hughes’s IFP motion challenging the district court’s certification that his
appeal was not taken in good faith “must be directed solely to the trial court’s
reasons for the certification decision.” Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). This court’s 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 citations omitted).
      Rather than address the district court’s reasons for holding that his appeal
was not taken in good faith, Hughes raises a series of patently meritless
arguments, including that 28 U.S.C. §§ 1915(a) and 1915A are not applicable to
prisoners and are unconstitutional. To the extent that he argues that the
district court’s certification was not adequate, he is mistaken. See Baugh, 117
F.3d at 202 n.21 (noting that in its certification decision a district court may
incorporate by reference its reasons for dismissing the complaint).
      Although we afford Hughes’s pro se motion liberal construction, Haines v.
Kerner, 404 U.S. 519, 520 (1972), he still must brief arguments to preserve them.
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). His failure to address the
district court’s reasons for the certification is the same as if he had not
challenged the district court’s order. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). He has failed to show that his
appeal has arguable merit. See Howard, 707 F.2d at 220.
      Accordingly, both Hughes’s IFP motion and his motion for appointment of
counsel are DENIED, and the appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2; Baugh, 117 F.3d at 202 n.24. The district court’s dismissal of Hughes’s

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                                 No. 11-10734

complaint and our dismissal of this appeal both count as strikes under § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Hughes is
CAUTIONED that if he accumulates three 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.




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