# United States Court **of Appeals** 
**f or 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* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 29, 2021
Lyle W. Cayce Clerk Case: 20-10834 Document: 00515800563 Page: 1 Date Filed: 03/29/2021No. 20

- 10834

2 order granting summary judgment to the defendants and dismissing his 42

U.S.C. § 1983 complaint in which he asserted that the defendants exhibited
deliber ate indifferen ce 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 challeng ing 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 certify ing 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 issue s , 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 2 02 & 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 present s Case: 20-10834 Document: 00515800563 Page: 2 Date Filed: 03/29/2021No. 20

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3 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). Morn es 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)

. Case: 20-10834 Document: 00515800563 Page: 3 Date Filed: 03/29/2021