     Case: 11-50735     Document: 00511827478         Page: 1     Date Filed: 04/19/2012




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

                                                                            FILED
                                                                           April 19, 2012
                                     No. 11-50735
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOSE ALBERTO GUTIERREZ,

                                                  Plaintiff–Appellant,

v.

CITY OF SAN ANTONIO MAGISTRATE OFFICE ADMINISTRATION;
MAGISTRATE CARMEN ROJO, City of San Antonio; MAGISTRATE
ROLANDO RAMOS, City of San Antonio; OFFICER TONY CASAREZ, City of
San Antonio Magistrate,

                                                  Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-431


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Jose Alberto Gutierrez, Texas prisoner # 1523604, moves for leave to
proceed in forma pauperis (IFP) on appeal.               He filed a 42 U.S.C. § 1983
complaint alleging that he was not afforded a timely probable cause hearing
following his arrest on November 23, 2007, for driving-while-intoxicated and
theft and that Defendants forged documents indicating that he was provided a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50735    Document: 00511827478       Page: 2    Date Filed: 04/19/2012

                                   No. 11-50735

hearing. The district court dismissed his complaint with prejudice as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and denied him leave to proceed IFP on
appeal.
       When, as in this case, a district court certifies that an appeal is not taken
in good faith under § 1915(a)(3), the appellant may either pay the filing fee or
challenge the court’s certification decision. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). By moving to proceed IFP, Gutierrez is challenging the
district court’s certification that his appeal is not taken in good faith. See id.
Our 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
omitted). We may dismiss the appeal sua sponte under 5th Circuit Rule 42.2 if
it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
       Gutierrez asserts that his appeal is not frivolous because his constitutional
rights were violated by Defendants’ actions but does not challenge the district
court’s reasons for dismissing his complaint or denying him leave to proceed IFP
on appeal.    Rather, he raises a vague and patently meritless argument,
unsupported by reference to case law, that denying a prisoner the right to appeal
IFP is unconstitutional. Pro se briefs are afforded liberal construction. Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Nevertheless, when an appellant
fails to identify any error in the district court’s analysis, it is the same as if the
appellant had not appealed that issue. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Gutierrez has failed
to challenge any legal aspect of the district court’s disposition of the claims
raised in his complaint or the certification that his appeal is not taken in good
faith, he has abandoned the critical issues of his appeal. See id. Thus, the
appeal lacks arguable merit and is therefore frivolous. See Howard, 707 F.2d at
220.



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                                  No. 11-50735

      Gutierrez’s motion for leave to proceed IFP on appeal is DENIED, and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2. Gutierrez’s motion for appointment of counsel is also DENIED. See
Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986).
      The dismissal of the complaint and appeal in the instant proceeding as
frivolous each count as a strike under § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996); § 1915(e)(2)(B)(i), (g). Gutierrez has one other
strike. See Gutierrez v. Tafolla, et al., No. 5:08-CV-743-XR (W.D. Tex. May 7,
2009). As Gutierrez has now accumulated at least three strikes under § 1915(g),
he may not proceed IFP in any civil action or appeal filed in a court of the United
States while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g). Gutierrez is further
warned that any future frivolous or repetitive filings in this court or any court
subject to this court’s jurisdiction will subject him to additional sanctions.
      MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED.




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