* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50729

Conference Calendar

ROLAND S PERKINS

Plaintiff-Appellant

v.

FNU NOGLE, San Antonio Police Department Officer; FNU LAND, San Antonio

Police Department; FNU SAULTER, San Antonio Police Department; POLICE

CHIEF MCMANUS; BEXAR COUNTY ADULT DETENTION CENTER

COMMISSARY, Premier Management Enterprise; APPEAL MANAGEMENT

CENTER; FNU FULLER

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:07-CV-292

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Roland S. Perkins, Texas prisoner # 704129, has moved for leave to

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

§ 1983 lawsuit as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and for failure to

state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii). The

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-50729

2

district court denied Perkins IFP status on appeal and certified that the appeal

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

By moving for leave to proceed IFP, Perkins is challenging the district

court’s certification that the appeal is not taken in good faith. Baugh v. Taylor,

117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken

in 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). Probable

success on the merits is not required. Id.

Perkins argues that he lacks funds to pursue his appeal, but he fails to

brief any argument regarding the district court’s certification decision or, in

particular, its dismissal of his § 1983 lawsuit as frivolous and for failure to state

a claim upon which relief can be granted. Failure to identify any error in the

district court’s analysis is the same as if the appellant had not appealed the

judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748

(5th Cir. 1987). 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).

Perkins has thus abandoned any challenge to the district court’s denial of IFP

on appeal. See Brinkmann, 813 F.2d at 748. Accordingly, we deny his IFP

motion, and we dismiss his appeal as frivolous. See 5TH CIR. R. 42.2; Baugh, 117

F.3d at 202 & n.24; Howard, 707 F.2d at 220.

The district court’s dismissal of Perkins’s § 1983 lawsuit as frivolous and

for failure to state a claim pursuant to § 1915(e)(2)(B)(i)-(ii) and our dismissal

of this appeal as frivolous both count as strikes for purposes of § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Perkins previously

accumulated a strike in another case. Perkins v. Blackwell, No. C-960526 (S.D.

Tex. May 20, 1998), aff’d sub nom. Perkins v. Dial, No. 98-40798, 2000 WL
No. 07-50729

3

1598085 (5th Cir. Oct. 4, 2000) (unpublished); see Adepegba, 103 F.3d at 387;

Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 461-64 (5th Cir. 1998). As

Perkins has now accumulated three strikes, he is barred from proceeding IFP

while he is incarcerated or detained in any facility unless he “is under imminent

danger of serious physical injury.” § 1915(g).

MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR

IMPOSED.