     Case: 09-10706     Document: 00511018890          Page: 1    Date Filed: 02/02/2010




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

                                                  FILED
                                                                          February 2, 2010
                                     No. 09-10706
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

JOHNNY DEWAYNE LEWIS,

                                                   Plaintiff-Appellant

v.

STEVEN R. HEROD, Judge 91st District Court; RUSSELL D. THOMASON,
District Attorney, 91st District,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 1:09-CV-67


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Johnny Lewis, former Texas prisoner # 1558124, moves this court for leave
to proceed in forma pauperis (IFP) in his appeal from the district court’s denial
of his 42 U.S.C. § 1983 case against a Texas state court judge and a Texas
district attorney. The district court dismissed Lewis’s suit as frivolous and for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), finding that
the judge and the district attorney were immune from Lewis’s suit.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10706    Document: 00511018890 Page: 2         Date Filed: 02/02/2010
                                 No. 09-10706

      In his brief, Lewis argues that he lacks funds to pursue his appeal, but he
fails to brief any argument regarding the district court’s certification decision or,
in particular, its dismissal of his § 1983 lawsuit as frivolous and for failure to
state a claim upon which relief can be granted. Although we liberally construe
pro se briefs, see Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants
must brief arguments in order to preserve them. Yohey v.Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). By failing to discuss the district court’s rationale for
dismissing his complaint, Lewis has abandoned the issue, and it is the same as
if he had not appealed the judgment. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Lewis has failed to
demonstrate that he will raise a nonfrivolous issue on appeal, his motion to
proceed IFP is denied. See F ED. R. A PP. P. 24(a); Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982). This appeal is without merit and is dismissed as frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR. R. 42.2.
      Lewis has also filed a motion for the appointment of counsel. Lewis has
not met the requisite “exceptional” requirements for appointment of counsel,
Santana v. Chandler, 961 F.2d 514, 515 (5th Cir. 1992); Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982), and his motion is denied. Lewis has filed a motion
for the discovery of evidence in another case. In light of the foregoing, this
motion is likewise denied.
      Finally, this court’s dismissal of the instant appeal and the district court’s
dismissal each count as a strike for purposes of § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Lewis is warned that if he
accumulates three strikes, he will be barred from proceeding 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 id.
      MOTIONS       DENIED;      APPEAL       DISMISSED;       THREE      STRIKES
WARNING ISSUED.



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