     Case: 18-51075      Document: 00515384338         Page: 1    Date Filed: 04/16/2020




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

                                                                          FILED
                                                                        April 16, 2020
                                      No. 18-51075                     Lyle W. Cayce
                                                                            Clerk

BRADLEY BARTON,

                                                 Plaintiff-Appellant

v.

D. BUCKNER, in his official capacity and individual capacity, Department’s
State Classification Committee; CALVIN PAGE; RONALD GIVENS; STATE
CLASSIFICATION COMMITTEE; BRIAN COLLIER,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-119


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Bradley Barton, Texas prisoner # 1680744, moves this court for leave to
proceed in forma pauperis (IFP) in his appeal from the dismissal of his 42
U.S.C. § 1983 suit wherein he sought declaratory and injunctive relief under
the Religious Land Use and Institutionalized Persons Act (RLUIPA) and for
damages for constitutional violations related to the practice of his religion and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
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                                  No. 18-51075

his housing assignment. The district court dismissed Barton’s RLUIPA claims
as moot and dismissed his Eighth Amendment claims for damages pursuant to
28 U.S.C. § 1915(e)(2)(B)(i)-(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state
a nonfrivolous claim. As an additional basis for dismissal, or in the alternative,
the district granted the defendant’s motion for summary judgment and
dismissed Barton’s suit for failure to exhaust administrative remedies. The
district court denied Barton leave to proceed IFP on appeal, certifying that the
appeal was not taken in good faith.
      Barton’s IFP motion is construed as a challenge to the district court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
This court’s inquiry into an appellant’s 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). Probable success on the merits is not
required. Id.
      If this court upholds the trial court’s certification and the appellant
persists in taking an appeal on the merits, he must pay the full appellate filing
fees and costs within 30 days or his appeal will be dismissed for want of
prosecution. Baugh, 117 F.3d at 202. This court may determine the merits of
a litigant’s appeal “where the merits are so intertwined with the certification
decision as to constitute the same issue.” Id. If the appeal is frivolous, this
court may dismiss it sua sponte. Baugh, 117 F.3d at 202 n.24; see 5TH CIR.
R. 42.2.
      In his brief before this court, Barton challenges the district court’s merits
decisions on his religious and Eighth Amendment claims. He does not address
the district court’s alternate basis for dismissal, the failure to exhaust
administrative remedies. Although this court applies less stringent standards



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                                  No. 18-51075

to parties proceeding pro se than to parties represented by counsel and
liberally construes briefs of pro se litigants, pro se parties must still brief the
issues and reasonably comply with the requirements of Federal Rule of
Appellate Procedure 28. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
This court “will not raise and discuss legal issues that [Barton] has failed to
assert.” Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987). By failing to address the district court’s alternative basis for
dismissing his suit, he has abandoned the issue on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Because Barton has abandoned any challenge to the district court’s
dismissal of his action for failure to exhaust, he fails to show that he will raise
a nonfrivolous issue for appeal. See Howard, 707 F.2d at 220. Accordingly, the
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; see 5TH CIR.
R. 42.2.
      A prisoner who has had three or more of his prior civil actions or appeals
dismissed as frivolous or for failure to state a claim is precluded from
proceeding IFP in subsequent civil actions or appeals. § 1915(g). The dismissal
of this appeal as frivolous counts as a strike under § 1915(g). See Coleman v.
Tollefson, 135 S. Ct. 1759, 1761-64 (2015); Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). Accordingly, Barton is warned that if he accumulates
two additional strikes, he may not proceed IFP in any civil action or appeal
while he is incarcerated or detained in any facility unless he is in imminent
danger of serious physical injury. See § 1915(g).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.




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