Batiste v. Caldwell Correctional Center
Batiste v. Caldwell Correctional Center
Opinion
Randy Lee Batiste, Louisiana prisoner # 124950, has filed a motion for leave to proceed in forma pauperis (IFP) on appeal. The district court dismissed Batiste’s 42 U.S.C. § 1983 complaint as frivolous and for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)© and (ii). The district court denied Batiste’s motion for leave to proceed IFP on appeal and certified that the appeal was not taken in good faith. By moving for leave to proceed IFP on appeal, Batiste is challenging the district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Batiste also moves for appointment of counsel on appeal.
Batiste’s IFP motion addresses only his indigence. He does not brief any argument regarding the dismissal of his § 1983 complaint as barred by the Parratt/Hudson doctrine. 1 Failure to identify any error in the district court’s analysis is the same as if the appellant had not appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). 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).
Batiste has not shown that the district court’s certification that an appeal would not be taken in good faith was incorrect. The instant appeal is without arguable merit and is thus frivolous. Accordingly, Batiste’s requests for IFP status and appointment of counsel are denied, and his *358 appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. Batiste is cautioned that the dismissal of his § 1983 suit by the district court pursuant to § 1915(e)(2)(B) and our dismissal of this appeal as frivolous both count as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Batiste is also cautioned that if he accumulates three strikes under § 1915(g), he 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).
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Parratt v. Taylor, 451 U.S. 527, 542-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 530-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.