Brent Myers v. M. Swindle, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [13-10236 Dismissed as Frivolous ] Judge: PRO , Judge: JWE , Judge: CH Mandate pull date is 10/31/2013; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Brent W. Myers [7357189-2] [13-10236]

Case: 13-10236

Document: 00512403830

Page: 1

Date Filed: 10/10/2013

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

FILED
No. 13-10236
Summary Calendar

October 10, 2013
Lyle W. Cayce
Clerk

BRENT W. MYERS,
Plaintiff-Appellant
v.
M. SWINDLE, Dallas Policeman; S. TOMIYAMA, Dallas Policeman; JOHN
DOE, White Male Dallas Policeman; JOHN DOE, Black Male Dallas Policeman;
D. KUNKLE, Dallas Police Chief; JANE DOE, White Female Dallas Jail Medic;
JOHN DOE, Black Male Dallas Policeman; CLARENCE WOOTEN; DWAYNE
COOPER; DOYLE WYNN; DAVID DAVIS,
Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-2292

Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Brent W. Myers, formerly Texas prisoner # 1513909, moves to proceed in
forma pauperis (IFP) in his appeal of the summary judgment dismissal of his pro
se 42 U.S.C. § 1983 complaint. The district court certified that an appeal would
not be in good faith. By moving for leave to proceed IFP, Myers is challenging

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-10236

Document: 00512403830

Page: 2

Date Filed: 10/10/2013

No. 13-10236
the certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “is limited 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).
In his IFP application, Myers asserts that the district court failed to set
forth in writing the reasons why it was certifying that his appeal was not taken
in good faith. The district court provided its reasons by incorporating by
reference the magistrate judge’s previous findings and conclusions as its own
reasons for certifying that the appeal was not taken in good faith; that is
sufficient. See Baugh, 117 F.3d at 202 n.21. Myers’s conclusional assertion that
there was conflicting evidence, without record citations and a discussion of the
evidence, and his assertion that the district court erred by weighing the
evidence, without a discussion of the district court’s analysis, are insufficient to
establish that he will raise a nonfrivolous issue on appeal. See Baugh, 117 F.3d
at 202 & n.24; Howard, 707 F.2d at 220.
Myers’s appeal is without arguable merit and is thus frivolous. See
Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is dismissed.
See 5TH CIR. R. 42.2. Given Myers’s history of frivolous filings, see Myers v.
Nash, 464 F. App’x 348, 350 (5th Cir. 2012), and the frivolous nature of the
instant appeal, Myers is WARNED that any future frivolous pleadings in this
court or in any court subject to the jurisdiction of this court will subject him to
sanctions. Myers is DIRECTED to review any pending matters to ensure that
they are not frivolous.
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

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