IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-51075

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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 16, 2020

Lyle W. Cayce

Clerk

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No. 18-51075

2

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

3

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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