No. 99-40899
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40899
Conference Calendar
TOMMY LEE SIMMONS, JR.; ANDREA EMEARY SIMMONS,
Plaintiffs-Appellants,
versus
DAVID CUMMINGS; ROBERT FAULKNER, Magistrate Judge; RANDY BLAKE;
MIKE BRADFORD; CAROL K. JOHNSON; SAMMIE HEDGE; JAMES W. PARSONS;
WILLIAM S. FITZGERALD; DAVID J. MALAND; TOYA MCEVEN; JAMES BRETT
SMITH; EDWARD DANERI; GERALD WAYNE COBB; RONALD USELTON; TERRY
BOX; RICHARD CARROLL; DEBRA BOND; KEN PAITH; BRAD GIBSON; SCOTT
WHITE; BRIAN T. BLICKENSDERFER; MONTY DEVINNEY; TARA FLETCHER;
PAUL BROWN; TOMMY DAVIS; SCOTT T. SMITH,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:99-CV-1
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April 14, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Tommy Lee Simmons, Jr., federal prisoner # 06069-078, and
his wife, Andrea Emeary Simmons, # 06080-078, appeal the district
court’s dismissal as frivolous of their civil rights action
against 26 state and federal officials pursuant to 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), in which they alleged various
*
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that this opinion should not be published and is not precedent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.
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constitutional claims arising out of their convictions for
possession with intent to distribute crack cocaine.
In their appellate brief, the appellants argue the merits of
their alleged constitutional claims relating to their
convictions. They do not argue that the district court erred in
its determination that their claims are a challenge to their
convictions and are subject to dismissal under Heck v. Humphrey,
512 U.S. 477 (1994). Failure of an appellant to identify any
error in the district court's analysis or application to the
facts of the case is the same as if the appellant had not
appealed that judgment. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because
appellants do not address the basis of the district court's
dismissal, they have abandoned the only issue on appeal before
this court.
We hold that this appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5th Cir. R. 42.2. All outstanding motions are DENIED.
Tommy Lee Simmons, Jr., and Andrea Emeary Simmons are hereby
informed that the dismissal of this appeal as frivolous counts as
a strike for purposes of 28 U.S.C. § 1915(g). Although the
Simmonses have paid the appellate filing fee, nothing in the
language of § 1915(g) suggests that the dismissal of this appeal
as frivolous would not count as a “strike” for purposes of
determining future eligibility to proceed IFP under the PLRA.
This is in addition to the strike for the district court’s
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dismissal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[§ 1915(g)]”.). We caution the Simmonses that once they
accumulate three strikes, they may not proceed IFP in any civil
action or appeal filed while they are incarcerated or detained in
any facility unless they are under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTIONS DENIED.