Patrick v. Boyle, et al

* 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opinion should not be published and is not precedent except under the limited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. 06-40122
Summary Calendar
BRYAN PATRICK,
Plaintiff-Appellant,
versus
U.S. ATTORNEY JANE J. BOYLE; ASSISTANT FEDERAL ATTORNEY JASON
HAWKINS; ADMINISTRATOR FRANK HOKE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 6:05-CV-32
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
State prisoner Bryan Patrick moves for leave to proceed in
forma pauperis (“IFP”) on appeal following the dismissal, as
frivolous, of his 42 U.S.C. § 1983 civil rights complaint. See
28 U.S.C. § 1915(e)(2)(B)(i). We construe the motion as a
challenge to the district court’s determination that the appeal is
United States Court of Appeals
Fifth Circuit
F I L E D
October 3, 2006
Charles R. Fulbruge III
Clerk

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No. 06-40122
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not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
Contrary to Patrick’s argument, the district court’s written
reasons sufficiently show that its certification decision was based
on its conclusion that the underlying complaint is frivolous. See
id. at 202 n.21. Patrick’s argument that denial of IFP status
would deny him access to the courts also is meritless. See Day v.
Allstate Ins. Co., 788 F.2d 1110, 1114 (5th Cir. 1986); Carson v.
Johnson, 112 F.3d 818, 821 (5th Cir. 1997).
Patrick’s motion does not directly challenge the district
court’s reasons for finding his complaint frivolous. Failure to
identify an error in the district court’s analysis has the same ef-
fect as though the appellant had not appealed at all. 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 to preserve them. Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993).
The instant appeal is without arguable merit and is frivolous.
Accordingly, Patrick’s request for IFP status is denied, and the
appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983); 5TH CIR. R. 42.2. Patrick is cautioned that the dis-
missal of his complaint by the district court and our dismissal of
this appeal as frivolous both count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). Patrick also is cautioned that if he accumulates three
strikes under § 1915(g), he may not proceed IFP in any civil action

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No. 06-40122
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or appeal filed while he is incarcerated or detained in any facil-
ity unless he is under imminent danger of serious physical injury.
See § 1915(g).
MOTION FOR IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.

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