Conference Calendar EDWARD NUNEZ v. JOE HUNT, Tom Green County Sheriff

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-10486
Conference Calendar
EDWARD NUNEZ
Plaintiff-Appellant
v.
JOE HUNT, Tom Green County Sheriff; MARY BYRNES, Tom Green County
Jail Commander; T J JACKSON, Tom Green County Jailer; JOSIE ROBINSON,
Tom Green County Jail Nurse; ANDY KOLB, Tom Green County Jails Gang
Intelligence
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:04-CV-74
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Edward Nunez, Texas prisoner # 543933, has applied for leave to proceed
in forma pauperis (IFP) in this appeal from the dismissal as frivolous of his civil
rights complaint. Nunez seeks appointment of counsel on appeal. Nunez has
shown no exceptional circumstances that warrant an appointment. Nunez’s
motion for appointment of counsel is denied.
United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2008
Charles R. Fulbruge III
Clerk

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No. 07-10486
2
“Under 28 U.S.C. § 1915(a), a federal court may refuse to certify an appeal
for in forma pauperis status if it is not taken in good faith.” Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). Nunez’s IFP motion is construed as a challenge
of the certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). The court’s inquiry into whether the appeal is taken in good faith “is
limited to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard, 707 F.2d at 220 (quotation marks omitted).
In his brief supporting his IFP motion, Nunez simply restates some of the factual
allegations made below, which were addressed by the magistrate judge in
finding the case to be without factual or legal foundation. Nunez provides no
legal argument challenging the magistrate judge’s findings. Nunez has not
explained how his restatement of factual allegations shows that the magistrate
judge erred in dismissing his claims. Nunez has failed to brief any issues for
appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Accordingly, Nunez’s failure to brief the issues has waived
his challenge to the dismissal as frivolous. See Cavallini v. State Farm Mut.
Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995).
The motion for leave to proceed IFP on appeal is denied. Nunez’s appeal
is without arguable merit, see Howard, 707 F.2d at 219-20, and is dismissed as
frivolous. See 5TH CIR. R. 42.2. The magistrate judge’s dismissal of Nunez’s
complaint as frivolous and this court’s dismissal of Nunez’s appeal both count as
strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). We caution Nunez that if he accumulates three strikes, he
will not be permitted 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. See § 1915(g).
APPOINTMENT OF COUNSEL DENIED; IFP DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.

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