     Case: 13-10185      Document: 00512592394         Page: 1    Date Filed: 04/10/2014




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

                                                                                  FILED
                                      No. 13-10185                            April 10, 2014
                                                                             Lyle W. Cayce
DANIEL GOMEZ,                                                                     Clerk

                                                 Plaintiff-Appellant

v.

EDDIE WHEELER, Warden; JIMMY BETCHER, Assistant Warden;
RICHARD LEAL, Assistant Warden,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:12-CV-84


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Daniel Gomez, Texas prisoner # 1589930, moves for leave to proceed in
forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. § 1983
complaint as frivolous. He also moves for the appointment of counsel. Gomez’s
claims in his § 1983 suit related to whether prison officials failed to protect him
against sexual assault, violence, and extortion in his unit.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10185


      The magistrate judge (MJ), before whom Gomez consented to proceed,
denied his motion for leave to proceed IFP on appeal and certified that this
appeal was not taken in good faith. By moving to proceed IFP here, Gomez is
challenging the MJ’s certification decision. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). Gomez’s bare assertions that the MJ was prejudiced
against him and that the records of his offender protection investigations
constituted clear and convincing evidence of the merits of his claims are
insufficient to show that the MJ’s certification decision was erroneous. See id.;
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Although pro se briefs
are liberally construed, even pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). The instant
appeal is without arguable merit and is dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2.
      Gomez filed a prior civil suit that was dismissed as frivolous, a decision
for which his appeal has been dismissed. Gomez v. Richey, No. 1:13-CV-12
(N.D. Tex. July 26, 2013), appeal dismissed, No. 13-10837 (5th Cir. Sept. 26,
2013). That prior dismissal counts as one strike under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Based on the
district court’s dismissal of this instant complaint and our dismissal of this
appeal as frivolous, Gomez has accumulated two additional strikes, for a total
of at least three strikes under § 1915(g). See id. at 388. Thus, Gomez 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).
      Additionally, we warn Gomez that frivolous, repetitive, or otherwise
abusive filings will invite the imposition of sanctions, which may include
dismissal, monetary sanctions, and restrictions on his ability to file pleadings

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                                  No. 13-10185


in this court and any court subject to this court’s jurisdiction. Gomez is further
warned that he should review any pending appeals and actions and move to
dismiss any that are frivolous.
      MOTION FOR LEAVE TO PROCEED IFP DENIED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED; 28 U.S.C.
§ 1915(g) BAR IMPOSED; SANCTION WARNING ISSUED.




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