IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50158

ROBERT W. GLENDINNING,

Plaintiff-Appellant

v.

TEXAS BOARD OF PARDONS & PAROLES,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CV-490

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Robert W. Glendinning, Texas prisoner # 620145, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the dismissal without prejudice 

of his 42 U.S.C. § 1983 complaint for failure to state a claim and as frivolous. 

See 28 U.S.C. § 1915(e)(2)(B). In his complaint, Glendinning alleged that 

Texas’s revised parole policies regarding set-offs between parole hearings, as 

applied to him, violated the Ex Post Facto Clause.

* 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

February 19, 2020

Lyle W. Cayce

Clerk

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No. 19-50158

2

By moving for leave to proceed IFP, Glendinning is challenging the 

district court’s certification that his appeal is not taken in good faith. See 

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry on appeal is 

restricted 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 citation omitted).

Glendinning fails to challenge the basis of the district court’s ruling. 

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 Cty. Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also FED.

R. APP. P. 28(a)(8). Glendinning therefore has abandoned any challenge to the 

district court’s determinations that (1) the Texas Board of Pardons & Paroles

is entitled to Eleventh Amendment immunity from suit under § 1983; and 

(2) even if he amended his complaint to name an individual official as a 

defendant, he could not establish an ex post facto violation resulting from the 

application of the revised parole laws. See Mapes v. Bishop, 541 F.3d 582, 584 

(5th Cir. 2008).

In his IFP motion, Glendinning argues that the district court failed to 

consider the two cases identified in his proposed amended complaint and 

supporting briefs, namely, Wilkinson v. Dotson, 544 U.S. 74 (2005), and Gross 

v. Quarterman, 211 F. App’x 251 (5th Cir. 2006). Because Glendinning had 

sufficient opportunity to plead his best case and because the information 

Glendinning sought to include in his complaint would not have prevented the 

complaint’s dismissal, he fails to show that there is a nonfrivolous basis for 

arguing that the district court abused its discretion by denying his motions to 

amend his complaint and to file briefs in support thereof. See Brewster v. 

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Dretke, 587 F.3d 764, 768 (5th Cir. 2009); Avatar Expl., Inc. v. Chevron, U.S.A., 

Inc., 933 F.2d 314, 321 (5th Cir. 1991).

Accordingly, Glendinning’s appeal does not present a nonfrivolous issue 

and has not been brought in good faith. See Howard, 707 F.2d at 220. Thus, 

the motion to proceed IFP is DENIED, and the appeal is DISMISSED as 

frivolous. See Baugh, 117 F.3d at n.24; see also 5TH CIR. R. 42.2.

The district court’s dismissal of Glendinning’s complaint and our 

dismissal of this appeal as frivolous both count as strikes for purposes of 

§ 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba 

v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Glendinning is WARNED that 

if he accumulates three strikes, he will not be able to 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).

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