United States Court of Appeals

for the Fifth Circuit

No. 20-50415

Abel De Leon, 

Plaintiff—Appellant,

versus

US Department of Justice; Merrick Garland, U.S. Attorney 

General; National Security Agency, 

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:19-CV-52

Before Stewart, Haynes, and Ho, Circuit Judges.

Per Curiam:*

Abel De Leon, federal prisoner # 07067-380, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. 

§ 1983 suit as frivolous. The district court denied De Leon’s IFP motion and 

certified that the appeal was not taken in good faith. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 2, 2021

Lyle W. Cayce

Clerk

Case: 20-50415 Document: 00516077394 Page: 1 Date Filed: 11/02/2021
No. 20-50415

2

By moving to proceed IFP, De Leon challenges 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 “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 citations omitted).

The dismissal of a claim as frivolous under 28 U.S.C. 

§ 1915(e)(2)(B)(i) is reviewed for an abuse of discretion. Black v. Warren, 134 

F.3d 732, 733-34 (5th Cir. 1998). A complaint is frivolous if it lacks an 

arguable basis either in law or in fact. Id. at 734.

The motion and incorporated brief De Leon filed in this court do not 

address the district court’s reason for determining that the appeal was 

frivolous, namely, that De Leon did not identify any legal basis that would 

permit the district court to grant the relief that he requested in his complaint. 

See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987). Further, his allegations that the Government is purposefully 

withholding technology that would eliminate child pornography so it may 

prosecute offenders are without basis in fact. See Nietzke v. Williams, 490 

U.S. 319, 327-28 (1989).

De Leon has failed to show that his appeal involves a nonfrivolous 

issue. Howard, 707 F.2d at 220 (internal quotation marks and citations 

omitted). Consequently, his motion to proceed IFP on appeal is denied, and 

the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th 

Cir. R. 42.2.

This court’s dismissal of the appeal as frivolous and the district 

court’s dismissal of the complaint as frivolous count as strikes for purposes 

of § 1915(g). See § 1915(g); Coleman v. Tollefson, 575 U.S. 532, 537 (2015). 

De Leon is warned that if he accumulates three strikes, he will not be able to 

Case: 20-50415 Document: 00516077394 Page: 2 Date Filed: 11/02/2021
No. 20-50415

3

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).

APPEAL DISMISSED; IFP MOTION DENIED; 

SANCTION WARNING ISSUED.

Case: 20-50415 Document: 00516077394 Page: 3 Date Filed: 11/02/2021