Murphy v. Abbott, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-50316

Jacob Earl Murphy,

Plaintiff—Appellant,

versus

Greg Abbott, Governor of the State of Texas; Dale Wainwright,
Chairman, Texas Board of Criminal Justice; Brian Collier, Executive
Director, Texas Department of Criminal Justice; Pamela Thielke,
Director, Texas Board of Pardons and Parole,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-667

Before Stewart, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Jacob Earl Murphy, Texas prisoner # 01805040, moves for leave to
proceed in forma pauperis (IFP) from the denial of his postjudgment motion

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 14, 2020

Lyle W. Cayce
Clerk
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No. 20-50316
2
challenging the dismissal of his 42 U.S.C. § 1983 complaint. He also moves
this court to seal the district court record.
By moving for leave to proceed IFP, Murphy is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry on appeal is restricted
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).
Murphy does not challenge the district court’s determination that his
claims for monetary damages were barred because he failed to overcome the
bar set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 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 issue. Brinkmann v. Dallas Cty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also Fed. R.
App. P. 28(a)(8). Murphy therefore has abandoned any challenge to the
district court’s denial of his postjudgment motion. See Mapes v. Bishop, 541
F.3d 582, 584 (5th Cir. 2008).
Accordingly, Murphy’s appeal does not present a nonfrivolous issue
and has not been brought in good faith. See Howard, 707 F.2d at 220. Thus,
the motion to proceed IFP is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; see also 5th Cir. R. 42.2. His
motion to seal the record is DENIED.
The district court’s dismissal of Murphy’s § 1983 complaint and our
dismissal of this appeal as frivolous both count as strikes for purposes of 28
U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015);
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Murphy is
WARNED that if he accumulates three strikes, he will not be able to proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in
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No. 20-50316
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any facility unless he is under imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).
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