IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60576

DARNELL BALDWIN,

Plaintiff-Appellant

v.

DAVID ABSTON, Pickens County Alabama Sheriff; KEITH COX, Pickens 

County Sheriff Det.; JOHN MCBRIDE, Pickens County Sheriff Det.; KENNY 

DIXON, Marshall County Mississippi Sheriff; JOHN DOE, Pickens County 

Sheriff Det.; JOHN #1 DOE, Marshall County Sheriff Det.; JOHN #2 DOE, 

Marshall County Sheriff Det.; JAMES STREETER, Warden; JAMES 

TUNSTALL, GEO Group/MCCF K-9 Officer; STEVE GURLEY, 

MDOC/MCCF/GEO Group CID; BEVERLY MCMULLIN, MDOC/MCCF Case 

Manager; EMMITT SPARKMAN, MDOC Deputy Commissioner,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:14-CV-23

Before SMITH, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

Darnell Baldwin, Mississippi prisoner # R5564, moves for leave to 

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

* 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

May 5, 2015

Lyle W. Cayce

Clerk

 

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No. 14-60576

§ 1983 complaint for failure to state a claim. In his complaint, he alleged that 

various prison officials violated his constitutional rights by forcing him to 

provide a DNA sample without a proper warrant and by reducing his 

classification to “C” custody for 35 days because he was the subject of an 

investigation into possible criminal activity. The district court dismissed 

Baldwin’s complaint for failure to state a claim under 28 U.S.C. 

§ 1915(e)(2)(B)(ii), denied his IFP motion, and certified that the appeal was not 

taken in good faith.

By moving to proceed IFP in this court, Baldwin 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 a litigant’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).

The district court did not err in dismissing the complaint for failure to 

state a claim. Baldwin argues that the district court erred because it did not 

apply the standard in Bailey v. Procunier, 744 F.2d 1166, 1168-69 (5th Cir. 

1984). Bailey is inapposite as it concerns the standard for obtaining 28 U.S.C. 

§ 2254 relief for the erroneous admission of prejudicial evidence. See Bailey, 

744 F.2d at 1168-69. Baldwin’s Fourth Amendment claim concerning the 

collection of his DNA lacks merit. “[A]lthough collection of DNA samples from 

prisoners implicates Fourth Amendment concerns, such collections are 

reasonable in light of an inmate’s diminished privacy rights, the minimal 

intrusion involved, and the legitimate government interest in using DNA to 

investigate crime.” Groceman v. United States Dep’t of Justice, 354 F.3d 411, 

413 (5th Cir. 2004); see also Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 

2003).

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Baldwin does not address or identify any error in the district court’s 

dismissal of (1) his claim against defendants Abston, Dixon, Streeter, and 

Sparkman; and (2) his claim challenging the classification change. By failing 

to brief these issues, Baldwin has abandoned them on appeal. See Yohey v. 

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. 

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

For the first time on appeal, Baldwin asserts that (1) his due process 

rights were violated because he was placed in oppressive custody for merely 

asserting his constitutional rights; and (2) his Fifth Amendment right against 

self-incrimination was violated when he was forced to provide the DNA sample. 

Baldwin may not raise an issue for the first time on appeal merely because he 

believes that he might prevail if given the opportunity to try a different theory. 

See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

Because Baldwin has not shown that he will raise a nonfrivolous issue 

on appeal, his IFP motion is DENIED, and his appeal is DISMISSED as 

frivolous. See Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 219-20; see

5TH CIR. R. 42.2. Baldwin is WARNED that the dismissal of this appeal as 

frivolous counts as a “strike” under § 1915(g), as does the district court’s 

dismissal of his complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 

(5th Cir. 1996).

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