Mark Zavala v. John Whitmire, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [11-51161 Dismissed as Frivolous] Judge: EGJ , Judge: JWE , Judge: JEG Mandate pull date is 09/07/2012; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Mark Anthony Zavala [7046366-2] [11-51161]

Case: 11-51161

Document: 00511960344

Page: 1

Date Filed: 08/17/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-51161
Summary Calendar

August 17, 2012
Lyle W. Cayce
Clerk

MARK ANTHONY ZAVALA,
Plaintiff-Appellant
v.
SENATOR JOHN WHITMIRE; BRYAN COLLIER, Division Director Parole
Division; BRAD LIVINGSTON, Executive Director Texas Department of
Criminal Justice; NORMA GREENFIELD, Region IV Director,
Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CV-611

Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Mark Anthony Zavala, Texas prisoner # 492723, moves this court for leave
to proceed in forma pauperis (IFP) in his appeal of the district court’s denial of
his motion for reconsideration of the dismissal of his 42 U.S.C. § 1983 civil rights
lawsuit. By moving for IFP status here, Zavala is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 11-51161

Document: 00511960344

Page: 2

Date Filed: 08/17/2012

No. 11-51161
F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a). Zavala’s brief on appeal
contends that his constitutional rights were violated. He does not address,
however, the district court’s certification that his appeal was not taken in good
faith, nor does he address any of the district court’s reasons for its certification
decision. See Baugh, 117 F.3d at 202. Accordingly, his challenge to the district
court’s certification decision is deemed abandoned. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Additionally,
Zavala has not shown that his appeal involves “legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983). Therefore, Zavala’s motion for leave to proceed IFP on appeal is
DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at
202 & n.24; 5TH CIR. R. 42.2.
The dismissal of Zavala’s suit by the district court and the dismissal of his
appeal count as strikes pursuant to 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Thus, Zavala is CAUTIONED
that if he accumulates three strikes under § 1915(g), he will not be able 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).

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