IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30246

BRYAN COLE,

Plaintiff-Appellant

v.

DARREL VANNOY; TRACY FALGOUT; DOCTOR RANDY LAVESPERE,

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:17-CV-338

Before OWEN, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

Bryan Cole, Louisiana prisoner # 475537, moves for leave to proceed in 

forma pauperis (IFP) on appeal. He filed this 42 U.S.C. § 1983 action against 

Darrel Vannoy, Warden of the Louisiana State Penitentiary (LSP) at Angola, 

Tracy Falgout, Assistant Warden, and Dr. Randy Lavespere, medical director 

of LSP Angola Hospital, alleging that they intentionally refused his medical 

treatment and supplies with deliberate indifference to his serious medical 

needs in violation of the Eighth Amendment.

 

* 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

October 29, 2018

Lyle W. Cayce

Clerk

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No. 18-30246

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The district court granted the defendants’ motion to dismiss Cole’s 

complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6). The 

district court dismissed the complaint in part under Rule 12(b)(1) against the 

defendants in their official capacities under the Eleventh Amendment. The 

district court also dismissed his complaint under Rule 12(b)(6), concluding that 

Cole had failed to state a claim of deliberate indifference under the Eighth 

Amendment and that Cole had failed to allege any personal acts or 

involvement by the defendants in his medical care. The district court 

determined that Cole’s allegations amounted to a mere disagreement with the 

determinations made by medical personnel regarding his treatment. The 

district court denied Cole’s motion to proceed IFP on appeal, certifying that his 

appeal was not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and FED.

R. APP. P. 24(a)(3).

By moving to proceed IFP, Cole 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 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 citation omitted). We may dismiss the 

appeal under 5th Circuit Rule 42.2 if it is frivolous. See Baugh, 117 F.3d at 

202 n.24; 5TH CIR. R. 42.2.

To the extent that Cole briefed an argument relating to Dr. Lavespere, 

the fact that Dr. Lavespere may have not agreed with or followed the treatment 

recommended by an outside consulting physician does not establish deliberate 

indifference. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999) (holding 

that doctor’s decision not to follow recommendation of an outside consulting 

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doctor was a difference in medical opinion as to the appropriate method of 

treatment but not deliberate indifference).

Otherwise, Cole does not challenge the district court’s reasons for 

dismissing his complaint or denying him leave to proceed IFP on appeal. 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 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 Cole has failed to challenge any legal aspect of the district 

court’s disposition of his complaint or the certification that his appeal is not 

taken in good faith, he has abandoned the critical issues of his appeal. Id. 

Thus, the appeal lacks arguable merit and is frivolous. See Howard, 707 F.2d 

at 220. Accordingly, Cole’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.

We hereby inform Cole that the dismissal of this appeal as frivolous 

counts as a strike for purposes of § 1915(g), in addition to the strike for the 

district court’s dismissal. See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64 

(2015) (“A prior dismissal on a statutorily enumerated ground counts as a 

strike even if the dismissal is the subject of an appeal.”); Adepegba v. 

Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[B]oth the frivolous appeal and 

a lower court’s dismissal as frivolous count.”), abrogated in part on other 

grounds by Coleman, 135 S. Ct. at 1762-63. We caution Cole that once he 

accumulates three strikes, 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 28 U.S.C. § 1915(g).

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IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED; 

ALL OTHER MOTIONS DENIED.

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