     Case: 17-30148      Document: 00514211431         Page: 1    Date Filed: 10/26/2017




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

                                      No. 17-30148                                  FILED
                                                                              October 26, 2017
                                                                               Lyle W. Cayce
NATHANIEL A. MINGO,                                                                 Clerk

                                                 Plaintiff-Appellant

v.

BOSSIER MAXIMUM CORRECTIONAL FACILITY, in their official an
individual capacity; JULIAN C. WHITTINGTON, in his individual capacity;
RODNEY BOYER, in his official and individual capacity; BRAD ANDERSON,
in his official and individual capacity; MARK TOLOSO, in his official and
individual capacity; JOHN DOE, in his official and individual capacity; JANE
DOE, in her official and individual capacity; KATRINA CHANDLER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:16-CV-522


Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Nathaniel A. Mingo, Louisiana prisoner # 415870,
filed a motion for leave to proceed in forma pauperis (IFP) on appeal from 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-30148

dismissal of his civil rights action under 42 U.S.C. § 1983. The district court
concluded that Mingo had failed to state a cognizable constitutional claim.
      The district court also denied IFP status and certified that the appeal
was not taken in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3).
Mingo challenges that certification by moving to appeal IFP, See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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
apparent that it would be meritless. See Baugh, 117 F.3d at 202 n.24; see 5TH
CIR. R. 42.2.
      Mingo conclusionally asserts that he “has been diagnosed to have a life-
long handicap and permanent disability from serious injuries.” He further
asserts that “he was referred to a specialist” but was denied adequate and
timely medical care, which he could show if he is granted a hearing and “an
investigation and report in order to develop an adequate factual record.”
However, Mingo offers only conclusional assertions without elaboration or any
explanation of how any particular defendant’s acts violated his constitutional
rights or caused his alleged injuries. As Mingo fails to identify any error in the
district court’s analysis, it is as though he has not appealed that issue. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). He has failed to identify any nonfrivolous issue for appeal concerning
his medical care.
      Mingo also contends that he was entitled to a Spears hearing at which
he could have further developed his claims. Cf. Spears v. McCotter, 766 F.2d
179, 180-82 (5th Cir. 1985) (approving of a hearing at which a prisoner may
articulate and explain the factual basis for his claims). The district court was



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                                 No. 17-30148

not required to hold a Spears hearing, especially because it used a
questionnaire that served the same function as a Spears hearing. See Brewster
v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009); Green v. McKaskle, 788 F.2d
1116, 1120 (5th Cir. 1986). Mingo further maintains that he is entitled to a
jury trial under the Seventh Amendment.         He makes this bare assertion
without addressing any claim or identifying any nonfrivolous issue for appeal.
      Aside from the foregoing contentions, Mingo primarily cites established
law without explaining how it applies to his appeal. Any potential arguments
that Mingo may have had about the claims he raised in the district court are
waived by his failure to brief them on appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
      Because Mingo identifies no nonfrivolous issue for appeal, his IFP
motion is DENIED and his appeal is DISMISSED AS FRIVOLOUS.                   See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The dismissal of this appeal
as frivolous and the district court’s dismissal of Mingo’s complaint for failure
to state a claim each count as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).             Mingo is
WARNED that once he accumulates three strikes, he may not 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).




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