Charles Higgins, II v. Michell Phillip

Case: 13-11206 Document: 00512672295 Page: 1 Date Filed: 06/20/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-11206 FILED
June 20, 2014
Lyle W. Cayce
CHARLES HIGGINS, II, Clerk

Plaintiff-Appellant

v.

MICHELL PHILLIP, Warden, Dawson State Jail; ROLANDA WINFIELD,
Warden, Dawson State Jail; NFN GOOD, L.V.N.; ROY REID, Doctor,

Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-2877

Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
Charles Higgins, II, Texas prisoner # 1710764, seeks our authorization
to proceed in forma pauperis (IFP) in his appeal of the district court’s dismissal
of his 42 U.S.C. § 1983 action as frivolous. By his IFP motion in this court,
Higgins questions the district court’s denial of IFP status and certification that
his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 13-11206 Document: 00512672295 Page: 2 Date Filed: 06/20/2014

No. 13-11206

In his motions and brief, Higgins fails to provide either argument or
authorities to show that the district court erred in determining that his
complaint failed to state a claim and was frivolous; he merely offers a
conclusory assertion that he is entitled to redress. He does not challenge the
district court’s reasons for denying § 1983 relief and does not address the
question whether his § 1983 claims “involve[ ] legal points arguable on their
merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation
marks and citations omitted). Higgins has thus abandoned any challenge to
the dismissal of his complaint and the certification that his appeal is not taken
in good faith. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED.
R. APP. P. 28(a)(8). As Higgins has not shown that his appeal has merit, we
may dismiss it as frivolous sua sponte. See Howard, 707 F.2d at 220; 5TH CIR.
R. 42.2.
The dismissal of Higgins’s complaint by the district court and the
dismissal of this appeal as frivolous, count as two strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Higgins is cautioned that if he accumulates three strikes he will not be able to
proceed IFP in any civil action or appeal while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).
Higgins’s motions to proceed IFP and to have counsel appointed are
DENIED, and the appeal is DISMISSED as frivolous.

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