IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30172

Summary Calendar

MERVIN SPENCER,

Plaintiff - Appellant

v.

ST. JOHN THE BAPTIST PARISH; WAYNE L. JONES; UNIDENTIFIED

PARTIES; DALE PICKETT; WALTER CHAPELLE; ROBERT BECNEL;

BARRY LANDRY; RICHARD B. STRICKS; EDWIN D. HAWKINS; J.

STERLING SNOWDY,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CV-2831

Before GARZA, SOUTHWICK and HAYNES, Circuit Judges.

PER CURIAM:*

Mervin Spencer, federal prisoner # 28914-034, 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 and 1985. In his

complaint, Spencer argued that Louisiana state officials violated his

United States Court of Appeals

Fifth Circuit

F I L E D

September 13, 2011

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.

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No. 11-30172

constitutional rights when they did not return his personal property or provide

him just compensation for his personal property. 

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. This court, however, may

dismiss the appeal as frivolous when it is apparent that an appeal would be

meritless. Id. at 202 n.24; 5TH CIR. R. 42.2. 

The district court adopted the findings and conclusions of the magistrate

judge and dismissed Spencer’s complaint as frivolous. Thus, we review the

dismissal for abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999). 

Spencer’s complaint was dismissed after a determination that his claims

were prescribed. Spencer fails to address or challenge the reasoning for

dismissing his complaint – his claims were time barred. 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, Spencer

has waived any such challenge on appeal. See id.; Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (stating that failure to

identify any error in the district court’s analysis is the same as if the appellant

had not appealed the judgment). Moreover, Spencer has not demonstrated that

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

discretion.

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No. 11-30172

Spencer is cautioned that the dismissal of his suit by the district court and

the dismissal of his 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). He is further

cautioned that if he accumulates three strikes under § 1915(g), he will not be

able to proceed in forma pauperis 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).

MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION

WARNING ISSUED.

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Case: 11-30172 Document: 00511600788 Page: 3 Date Filed: 09/13/2011