     Case: 17-40107      Document: 00514431076         Page: 1    Date Filed: 04/16/2018




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


                                      No. 17-40107                              FILED
                                                                            April 16, 2018
                                                                           Lyle W. Cayce
ESAW LAMPKIN,                                                                   Clerk

                                                 Plaintiff-Appellant

v.

BOBBY DEAN; JOE CASSIN; DON LEACH; BRANDON T. WINN; KAREN
REAM,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-496


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Esaw Lampkin, Texas prisoner # 1912325, moves for leave to proceed in
forma pauperis (IFP) on appeal from the judgment dismissing his 42 U.S.C.
§ 1983 claims against the defendants. The district court denied IFP status
upon certifying that Lampkin’s appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We deny the motion to proceed IFP




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40107    Document: 00514431076     Page: 2   Date Filed: 04/16/2018


                                 No. 17-40107

and dismiss Lampkin’s appeal as frivolous. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983); Baugh, 117 F.3d at 202 & n.24.
      By moving in this court to proceed IFP, Lampkin challenges the district
court’s certification that his appeal is not taken in good faith. See Baugh, 117
F.3d at 202. A good faith appeal is one that “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).
      Lampkin’s cursory IFP motion fails to make the requisite showing. In
fact, aside from flatly declaring that his claims are not frivolous, he offers no
actual argument to that end. Lampkin’s failure to brief the IFP issue is the
same as if he had not appealed the judgment at all. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). As a result,
he has waived any challenge to the district court’s IFP ruling and, thus, cannot
show that the court’s certification was an abuse of its discretion. See Hughes
v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999); Carson v. Polley, 689 F.2d
562, 586 (5th Cir. 1982). And because Lampkin, by failing to brief the issue,
does not rebut the finding that his appeal lacks arguable merit, we conclude
that it is frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      The dismissal of this appeal as frivolous counts as a strike against
Lampkin under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Lampkin has previously filed at least one other civil
action that was also dismissed as frivolous, which counts as a second strike for
purposes of § 1915(g). Lampkin is WARNED that if he accumulates three
strikes, he will not be able to 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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  Case: 17-40107   Document: 00514431076   Page: 3   Date Filed: 04/16/2018


                            No. 17-40107

    IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
APPELLANT WARNED.




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