United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 11, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41295
Summary Calendar
ERNEST RAY KOONCE,
Plaintiff-Appellant,
versus
INTERNAL REVENUE SERVICE; LARRY LAGRAND, Agent;
FRAN BERRY, Agent,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-408
--------------------
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ernest Ray Koonce, federal prisoner # 66230-079, proceeding
pro se and in forma pauperis (“IFP”), appeals the district
court’s dismissal of his complaint for lack of subject matter
jurisdiction and for failure to state a claim upon which relief
may be granted, and denying all outstanding motions. Koonce
brought suit against the defendants pursuant to the Federal Tort
*
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that this opinion should not be published and is not precedent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.
No. 02-41295
-2-
Claims Act (“FTCA”), Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), common law torts, and
the Administrative Procedures Act (“APA”), after his airplane was
struck by another plane while sitting on the tarmac at the Polk
County Airport in Livingston, Texas. At the time of the
accident, the airplane was in the possession of the Internal
Revenue Service (“IRS”), after being seized pursuant to a
jeopardy assessment.
On appeal, Koonce argues that the district court abused its
discretion in not granting his motion for default judgment
because the United States Marshal took too long to serve his
complaint on the United States Attorney. Koonce has not shown
that Government was in default. Therefore, he has not shown that
the district court abused its discretion in denying his motion
for default judgment. See Lewis v. Lynn, 236 F.3d 766, 767 (5th
Cir. 2001).
Koonce’s brief does not challenge adequately the district
court’s reasons for dismissing his claims. See FED. R. APP.
P. 28(a)(9)(A). Rule 28(a)(9)(A) requires that the appellant’s
argument contain the reasons he deserves the requested relief
with citation to the authorities, statutes and parts of the
record relied on. Although we apply less stringent standards to
parties proceeding pro se than to parties represented by counsel
and liberally construe briefs of pro se litigants, pro se parties
must still brief the issues and reasonably comply with the
No. 02-41295
-3-
requirements of FED. R. APP. P. 28. Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995). When an appellant fails to identify
any error in the district court’s analysis, it 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).
This appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is
therefore DISMISSED. 5TH CIR. R. 42.2.
The dismissal of this appeal counts as a strike under the
Prison Litigation Reform Act. See Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). Koonce is WARNED that if he
accumulates three “strikes” under 28 U.S.C. § 1915(g) he will not
be able to proceed IFP in any civil action or appeal filed while
he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
APPEAL DISMISSED, SANCTION WARNING ISSUED.