Opinion
No. 06-51244 Conference Calendar.
August 21, 2007.
John W. Melton, Texas Department of Criminal Justice Institutional Division, Teague, TX, for Plaintiff-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 6:06-CV-153.
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
John W. Melton, Texas prisoner # 1168128, has filed a motion for leave to proceed in forma pauperis (IFP) on appeal. The magistrate judge denied Melton's motion to appeal IFP and certified that the appeal was not taken in good faith. By moving for IFP, Melton is challenging the district court's certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Melton consented to the magistrate judge entering the final judgment in this case. See 28 U.S.C. § 636(c).
Failure to identify an error in the district court's analysis is the same as if the appellant had not appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are liberally construed, even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Melton offers only a conclusory assertion of perjured testimony at the Spears hearing to challenge the dismissal of his civil rights complaint. Melton has not shown that the magistrate judge's determination that his appeal would be frivolous was incorrect. The instant appeal is without arguable merit and is thus frivolous. Accordingly, Melton's request for IFP status is denied, and his appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-220 (5th Cir. 1983); 5TH CIR. R. 42.2. Melton is reminded that he has three strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996); Melton v. Livingston, 219 Fed.Appx. 338 (5th Cir. 2007). Accordingly, he may not 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. See § 1915(g). We caution Melton that further frivolous filings may result in additional sanctions against him.
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.