     Case: 14-40782      Document: 00513027933         Page: 1    Date Filed: 05/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40782
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MICHAEL LANE,                                                                May 1, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant            Clerk

v.

JOHN A. RUPERT; PATRICK COPPER; FRANK HOKE; GALE KARRIKER;
UNKNOWN DORSEY, Mailroom Supervisor; JOHN DOE; JANE DOE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:14-CV-305


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Michael Lane, Texas prisoner # 1238595, moves for leave to proceed in
forma pauperis (IFP) on appeal following the district court’s dismissal of his 42
U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915A(b)(1). Lane argued that
the defendants denied him access to the courts because they failed to timely
mail his 28 U.S.C. § 2254 petition to the district court. The district court
determined that Lane’s § 1983 complaint failed to state a claim for relief and
as frivolous because (1) he was collaterally estopped from showing that he

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40782

placed his § 2254 petition in the prison mail system by its due date, and (2) he
could not show the requisite harm in order to proceed with an access to the
courts claim because his § 2254 petition received full review on the merits.
      Lane’s motion for leave to proceed IFP is construed as a challenge to the
district court’s certification that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). When considering this
challenge, we must determine “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).
If we uphold the district court’s certification that the appeal is not taken in
good faith, Lane must pay the filing fee or the appeal will be dismissed for want
of prosecution. See Baugh, 117 F.3d at 202. Alternatively, we may dismiss the
appeal sua sponte if it is frivolous. Id. at 202 n.24.
      Prisoners have a constitutional right of access to the courts. Bounds v.
Smith, 430 U.S. 817, 821 (1977). However, the right of access to the courts “is
ancillary to the underlying claim, without which a plaintiff cannot have
suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S.
403, 415 (2002). Thus, to prevail on an access to the courts claim, a prisoner
must show that an actionable claim was rejected. See Lewis v. Casey, 518 U.S.
343, 349-52 (1996).
      Lane does not address or identify any error in the district court’s
determination that he could not show injury arising from the actions or
inactions of the defendants because his petition was considered and rejected
on its merits. By failing to brief this issue, Lane has abandoned it on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Thus, regardless
whether the district court was correct in applying the doctrine of collateral



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                                  No. 14-40782

estoppel to the issue of the date of filing of the § 2254 petition, Lane has not
shown that he will raise a nonfrivolous issue for appeal. See Howard, 707 F.2d
at 219-20.
        Accordingly, it is ordered that Lane’s motion to proceed IFP on appeal is
denied, and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
n.34.    The dismissal of the instant appeal, as well as the district court’s
dismissal under § 1915A(b)(1), count as “strikes” under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We caution
Lane that if he accumulates three strikes, he will not be able to proceed IFP in
any civil action or appeal filing while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
        MOTION DENIED; APPEAL DISMISSED; WARNING ISSUED.




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