IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20118

Summary Calendar

KENNETH JUSTICE,

Plaintiff-Appellant

v.

LOREN JACKSON, District Clerk of Harris County, Texas,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-3661

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. 

PER CURIAM:*

Kenneth Justice, Texas prisoner # 1337192, moves this court for leave to

proceed in forma pauperis (IFP) in his appeal from the district court’s dismissal

of his complaint filed pursuant to 42 U.S.C. § 1983. In his complaint, Justice

argued that the District Clerk of Harris County, Texas, violated his rights to

investigate and develop his habeas claims, to access the courts, and to petition

for a redress of grievances when the Clerk denied Justice’s request for copies of

court records pertaining to two of Justice’s criminal convictions. He further

alleged a denial of due process, and he sought a declaration that § 552.028 of the

United States Court of Appeals

Fifth Circuit

F I L E D

July 23, 2013

Lyle W. Cayce

Clerk

* 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: 12-20118 Document: 00512317974 Page: 1 Date Filed: 07/23/2013
No. 12-20118

Texas Government Code (the statute cited by the Clerk for denying Justice’s

request), as applied, was unconstitutional.

The district court may deny a motion for leave to appeal IFP by certifying

that the appeal is not taken in good faith and by providing written reasons for

the certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED.

R. APP. P. 24(a). If a prisoner opts to challenge the district court’s certification

decision, the prisoner may file a motion in the court of appeals for leave to

proceed IFP, which “must be directed solely to the trial court’s reasons for the

certification decision.” See Baugh, 117 F.3d at 202.

Justice’s complaint was dismissed because his claims were legally

frivolous, but he fails to address or challenge the reasons given by the district

court for dismissing his complaint. Although pro se briefs are afforded liberal

construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants

must brief arguments in order to preserve them, Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993). By failing to brief an argument challenging the basis of

the district court’s dismissal of his complaint, Justice has waived any such

challenge on appeal. See id.; Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987). Accordingly, he has not demonstrated that the

district court’s dismissal of his complaint as frivolous was an abuse of discretion. 

See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). His motion is therefore

DENIED, and his appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2.

We WARN Justice that the dismissal of his suit by the district court and

the dismissal of this appeal count as strikes pursuant to 28 U.S.C. § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We further warn

him that if he accumulates three strikes under § 1915(g), 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).

2

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