IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60538

EDDIE JOSEPH BROWN, 

Plaintiff-Appellant 

v. 

THERESSIA LYONS; DAWN STOUGH; ROBERT MCCORMICK; MITCH 

OWEN; DIANNE HERMAN-ELLIS; GEORGE HUFFMAN, 

Defendants-Appellees 

Appeal from the United States District Court 

for the Southern District of Mississippi 

USDC No. 1:16-CV-145

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Eddie Joseph Brown, Mississippi prisoner # 87813, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the dismissal of his pro se civil 

rights lawsuit filed pursuant to 42 U.S.C. §§ 1983, 1985(2)-(3), and 1986. 

Applying 28 U.S.C. § 1915(e)(2)(B)(ii), the district court dismissed Brown’s suit 

for failure to state a claim on which relief may be granted. The district court 

 

* 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

June 16, 2017

Lyle W. Cayce

Clerk

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No. 16-60538

2 

further denied Brown leave to proceed IFP on appeal, certifying that this

appeal was not taken in good faith under § 1915(a)(3). 

By moving to proceed IFP in this court, Brown 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). “When [a] prisoner opts to challenge 

the certification decision, the [IFP] motion must be directed solely to the trial 

court’s reasons for the certification decision.” Id. In evaluating whether the 

appeal is taken in good faith, the relevant inquiry is “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). “[W]here the merits are so intertwined with the 

certification decision as to constitute the same issue,” we may deny the IFP 

motion and dismiss the appeal sua sponte if it is frivolous. Baugh, 117 F.3d at 

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

In the brief supporting his IFP motion, Brown describes his suit as 

asserting that the defendants, which include his defense counsel and the 

prosecutors involved in his 2012 Mississippi state jury trial and conviction,

conspired to deprive him of his liberty without due process by falsely entering 

an indictment when in fact no grand jury was meeting at the time the 

indictment was handed down. Brown acknowledges that the district court 

dismissed his case with prejudice because his claims, if successful, would 

necessarily imply the invalidity of his still-valid 2012 conviction. Brown fails, 

however, to assert any substantive challenge to this reasoning by the district 

court, which also serves as the basis for its lack-of-good-faith certification. 

Brown has thus failed to brief, and thereby abandoned, any challenge to the 

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

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Baugh, 117 F.3d at 202; Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) 

(holding that even pro se arguments must be briefed to be preserved). 

Brown’s sole argument in support of his IFP motion is that the district 

court was precluded from dismissing his action sua sponte prior to service of 

process because he had paid a partial filing fee. However, § 1915(e)(2)(B)(ii) 

expressly provides that, “[n]otwithstanding any filing fee, or any portion 

thereof, that may have been paid,” a complaint filed by a prisoner shall be 

dismissed by the district court “at any time” upon its determination that, 

among other things, the action fails to state a claim. Brown’s argument on this 

point thus clearly lacks merit and does not constitute a nonfrivolous issue for 

appeal. See Howard, 707 F.2d at 220. 

In light of the foregoing, the district court did not err in denying Brown’s 

IFP motion, since his appeal does not involve legal points arguable on their 

merits and is thus not taken in good faith. See id. at 219-20. Accordingly, 

Brown’s IFP motion is DENIED and the appeal is DISMISSED AS 

FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The 

dismissal of the complaint by the district court for failure to state a claim and 

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

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). 

Brown is WARNED that, if he accumulates three strikes, he will not be allowed 

to proceed IFP in any civil action or appeal 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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