United States Court of Appeals

for the Fifth Circuit

No. 20-10834

Leonard Mornes, 

Plaintiff—Appellant,

versus

Lupe Valdez, Sheriff; NFN Smith, Shift Leader Officer; NFN 

Smith, Officer; Elizabeth NLN, Nurse; NFN Betts, Doctor; 

Sean Nicholas Shahrestani, Doctor; Doctor Brigham 

Kanakanuiokekai Au, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-2333

Before Clement, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

Leonard Mornes, Texas prisoner # 02120659, has filed a motion for 

leave to proceed in forma pauperis (IFP) on appeal from the district court’s 

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opinion should not be published and is not precedent except under the limited 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

March 29, 2021

Lyle W. Cayce

Clerk

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order granting summary judgment to the defendants and dismissing his 42 

U.S.C. § 1983 complaint in which he asserted that the defendants exhibited

deliberate indifference to his broken ankle and denied him medical care while 

he was a pretrial detainee. The complaint was dismissed in part on the basis 

that Mornes did not overcome the defense of qualified immunity raised by 

the defendants and in part on the ground that Mornes failed to exhaust his 

administrative remedies before filing suit. Mornes additionally requests the 

appointment of counsel.

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

court’s certification pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of 

Appellate Procedure 24(a)(3) that his appeal is not taken in good faith. See 

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The inquiry into whether 

an appeal is taken in good faith requires a brief consideration of the merits; a 

colorable claim—one that involves legal points arguable on the merits—is not 

frivolous. Howard v. King, 707 F.2d 215, 220-21 (5th Cir. 1983). Although

Mornes was granted IFP status in the district court, he must obtain leave to 

proceed IFP on appeal. See Fed. R. App. P. 24(a)(3)(A).

Mornes has failed to brief any argument addressing the district court’s 

reasons for dismissing the complaint and certifying that the appeal is not 

taken in good faith. Accordingly, Mornes has abandoned any challenge to the 

district court’s certification decision, see Brinkmann v. Dallas Cnty. Deputy 

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987), and failed to show that his 

appeal involves any arguably meritorious issues, see Howard, 707 F.2d at 220. 

Because he has failed to show that his appeal involves a nonfrivolous issue, 

we DENY his motion to proceed IFP and DISMISS the appeal as frivolous. 

See Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 220; 5th Cir. R.

42.2. We also DENY his motion for the appointment of counsel because he 

has not demonstrated that his challenge to the certification decision presents

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exceptional circumstances that justify appointing him counsel. See Cooper v. 

Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

The dismissal of this appeal as frivolous counts as a strike pursuant to

§ 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64 (2015). Mornes

is WARNED that if he accumulates three strikes, he may not proceed IFP 

in any civil action or appeal while he is incarcerated or detained in any facility 

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

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