Carlos McGrew v. Burl Cain, Warden, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [10-30645 Dismissed as Frivolous] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 01/06/2011; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Carlos McGrew [6591582-2] [10-30645]

Carlos McGrew v. Burlase: 10-30645 al C Cain, Warden, et Document: 00511323560

Page: 1 Date Filed: 12/16/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30645 S u m m a r y Calendar December 16, 2010 Lyle W. Cayce Clerk

C A R L O S A. MCGREW, P la in t if f -A p p e lla n t v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; L E M A R T I N I E R E , Warden; JOHN L CALVERT, Warden, D e fe n d a n t s -A p p e lle e s JOE

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:09-CV-1019

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* C a r lo s A. McGrew, Louisiana state prisoner # 413135, proceeding pro se, m o v e s for leave to proceed in forma pauperis (IFP) in an appeal of the district c o u r t's judgment dismissing his civil rights complaint for failure to exhaust a d m in is t r a t iv e remedies pursuant to 42 U.S.C. § 1997e(a). McGrew's IFP

m o t io n is a challenge to the district court's certification that his appeal is not t a k e n in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 10-30645 Document: 00511323560 Page: 2 Date Filed: 12/16/2010 No. 10-30645 M c G r e w argues that the district court failed to provide written reasons for t h e certification that his appeal was not taken in good faith but merely referred t o the magistrate judge's report. To comply with the written-reasons

r e q u ir e m e n t , the district court may incorporate by reference its prior decision. See Baugh, 117 F.3d at 202 n.21. Here, the district court certified that McGrew's a p p e a l was not taken in good faith for the reasons set forth in the magistrate ju d g e 's report, which the district court had adopted. The district court's reasons w e r e sufficient. See Baugh, 117 F.3d at 202 n.21. C o n t r a r y to McGrew's suggestion that he can merely incorporate by r e fe r e n c e his arguments made in his objections to the magistrate judge's report, t h is court requires arguments to be made in the body of a brief and does not p e r m it incorporation of prior pleadings by reference, even in the case of pro se lit ig a n t s . Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). By failing to a d e q u a t e ly brief any argument challenging the district court's dismissal of his c o m p la in t for failure to exhaust administrative remedies, he has abandoned the o n ly cognizable issue before this court. See id.; Brinkmann v. Dallas County D e p u ty Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). McGrew has not shown that he will present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion fo r leave to proceed IFP is DENIED and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The dismissal of this appeal counts as one strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). McGrew has one prior strike. McGrew v. Roundtree, No. 09-31206, 2010 WL 2 8 3 6 1 1 3 at *1 (5th Cir. Jul. 20, 2010) (unpublished). McGrew is CAUTIONED t h a t if he accumulates three strikes under § 1915(g), he will not be able to p r o c e e d IFP in any civil action or appeal filed while he is incarcerated or d e t a in e d in any facility unless he is under imminent danger of serious physical in ju r y . See § 1915(g). 2

Case: 10-30645 Document: 00511323560 Page: 3 Date Filed: 12/16/2010 No. 10-30645 I F P MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D .

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