IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11049

BABU S. KALLUVILAYIL,

Plaintiff-Appellant

v.

BARBARA M. G. LYNN, Honorable Judge, U.S. District Judge, Northern 

District of Texas, Dallas Division; IRMA CARRILLO RAMIREZ, Magistrate 

Judge, Northern District of Texas, Dallas Division,,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:13-CV-137

Before OWEN, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Babu S. Kalluvilayil, Texas prisoner # 584945, moves for leave to proceed 

in forma pauperis (IFP) on appeal and for the appointment of counsel. He filed 

this 42 U.S.C. § 1983 action against District Court Judge Barbara M.G. Lynn 

and Magistrate Judge Irma Carrillo Ramirez, both of the Northern District of 

Texas, Dallas Division. He challenged the magistrate judge’s and the district 

* 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

February 11, 2014

Lyle W. Cayce

Clerk

 

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court judge’s actions in denying his various motions filed in his 28 U.S.C. 

§ 2254 proceeding and in denying his § 2254 application, arguing that they had 

violated his rights to due process and equal protection. He asserted that the 

defendants must be disqualified because they did not follow the Federal Rules 

of Civil Procedure and were biased and prejudiced.

The district court dismissed Kalluvilayil’s complaint as frivolous and for 

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A. 

Noting that Kalluvilayil’s allegations concerned the actions the defendants 

took in their official capacities as judges, the district court determined that the 

defendants were entitled to absolute immunity for judicial acts performed in 

his habeas proceeding and that Kalluvilayil’s claim for monetary damages 

should be dismissed as frivolous. The district court further ruled that his 

request for injunctive relief in the form of removal of the defendants from his 

case and appointment of another judge, as well as his requests for discovery, 

an evidentiary hearing, expansion of the record, and appointment of counsel in 

his habeas proceeding should be denied. Denying Kalluvilayil’s motion for 

leave to proceed IFP on appeal, the district court determined that the appeal 

was not taken in good faith for the reasons given in its order of dismissal and 

informed Kalluvilayil that he could challenge the court’s finding under Baugh 

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

By moving to proceed IFP, Kalluvilayil is challenging the district court’s 

certification that his appeal is not taken in good faith. See Baugh, 117 F.3d at 

202. Our inquiry into an appellant’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). We may dismiss the appeal under 5th 

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Circuit Rule 42.2 if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.

R. 42.2.

Kalluvilayil makes no arguments challenging the reasons for the district 

court’s dismissal of his claims for damages or injunctive relief, and he does not 

address the “trial court’s reasons for the certification decision.” See Baugh, 117 

F.3d at 202. Pro se briefs are afforded liberal construction. Yohey v. Collins, 

985 F.2d 222, 225 (5th Cir. 1993). Nevertheless, when an appellant fails to 

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

appellant had not appealed that issue. Brinkmann v. Dallas County Deputy 

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

failed to challenge any legal aspect of the district court’s disposition of the 

claims raised in his complaint or the certification that his appeal is not taken 

in good faith, he has abandoned the critical issues of this appeal. See

Brinkmann, 813 F.2d at 748. Thus, the appeal lacks arguable merit and is 

therefore frivolous. See Howard, 707 F.2d at 220. Accordingly, Kalluvilayil’s 

motions for IFP and appointment of counsel are denied, and his appeal is 

dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

We hereby inform Kalluvilayil that the dismissal of this appeal as 

frivolous counts as a strike for purposes of § 1915(g). See Adepegba v. 

Hammons, 103 F.3d 383, 387 (5th Cir. 1996). The dismissal of his complaint 

by the district court as frivolous and for failure to state a claim also counts as 

a strike. Id. at 387-88. Kalluvilayil has four previous strikes per the 

dismissals by the district court and this court in Kalluvilayil v. Texas Board of 

Pardons and Paroles, No. 13-11005 and Kalluvilayil v. Burns, No. 13-11050. 

Because Kalluvilayil has now accumulated at least three strikes under 

§ 1915(g), he may not proceed IFP in any civil action or appeal filed in a court 

of the United States while he is incarcerated or detained in any facility unless 

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he is under imminent danger of serious physical injury. See § 1915(g). 

Kalluvilayil is further warned that any pending or future frivolous or repetitive 

filings in this court or any court subject to this court’s jurisdiction may subject 

him to additional sanctions.

MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR NOTED; 

SANCTION WARNING ISSUED.

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