Johnson v. DOJ, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-10137

Derrick Adrian Johnson,

Plaintiff—Appellant,

versus

United States Department of Justice; United States
Attorney Northern District of Texas Dallas; State
Bar of Texas; Office of the Federal Public Defender,

Defendants—Appellees.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-1376

Before Jones, Costa, and Wilson, Circuit Judges.
Per Curiam:*
Derrick Adrian Johnson, federal prisoner # 36454-177, moves for leave
to proceed in forma pauperis (IFP) in this appeal of the district court’s denial
of his motion to recuse and dismissal of the civil suit he filed to bring claims

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 24, 2020

Lyle W. Cayce
Clerk
Case: 19-10137 Document: 00515538259 Page: 1 Date Filed: 08/24/2020

No. 19-10137
2
concerning several alleged systemic problems in the justice system that
infringed his constitutional rights and affected his trial. The IFP motion is a
challenge to the district court’s certification that the appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This
court’s inquiry into a litigant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted).
After consideration of Johnson’s filings in this court, we conclude that
he has not met this standard. Because he presents no argument concerning
the denial of his recusal motion, he has abandoned this claim. See Brinkmann
v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because success on his claims concerning the effects of alleged systemic
problems on his trial and his constitutional rights would implicate the validity
of his conviction, these claims are barred by Heck v. Humphrey, 512 U.S. 477,
487 (1994). Accordingly, the motion for leave to proceed IFP is DENIED,
and the appeal is DISMISSED as FRIVOLOUS. See Baugh, 117 F.3d at 202
n.24; 5
TH CIR. R. 42.2.
The dismissal of this appeal as frivolous constitutes a strike under
28 U.S.C. § 1915(g), as does the district court’s dismissal of his suit as
frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996),
abrogated in part on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759, 1762-
63 (2015). Johnson is WARNED that accumulating three strikes will
preclude him from proceeding 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).
Case: 19-10137 Document: 00515538259 Page: 2 Date Filed: 08/24/2020