Darnell Baldwin v. David Abston, et al
UNPUBLISHED OPINION ORDER FILED. [14-60576 Dismissed as Frivolous] Judge: JES , Judge: ECP , Judge: PRO Mandate pull date is 05/26/2015; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Darnell Baldwin [7773045-2] [14-60576]
Date Filed: 05/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 5, 2015
Lyle W. Cayce
DAVID ABSTON, Pickens County Alabama Sheriff; KEITH COX, Pickens
County Sheriff Det.; JOHN MCBRIDE, Pickens County Sheriff Det.; KENNY
DIXON, Marshall County Mississippi Sheriff; JOHN DOE, Pickens County
Sheriff Det.; JOHN #1 DOE, Marshall County Sheriff Det.; JOHN #2 DOE,
Marshall County Sheriff Det.; JAMES STREETER, Warden; JAMES
TUNSTALL, GEO Group/MCCF K-9 Officer; STEVE GURLEY,
MDOC/MCCF/GEO Group CID; BEVERLY MCMULLIN, MDOC/MCCF Case
Manager; EMMITT SPARKMAN, MDOC Deputy Commissioner,
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:14-CV-23
Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Darnell Baldwin, Mississippi prisoner # R5564, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 05/05/2015
§ 1983 complaint for failure to state a claim. In his complaint, he alleged that
various prison officials violated his constitutional rights by forcing him to
provide a DNA sample without a proper warrant and by reducing his
classification to “C” custody for 35 days because he was the subject of an
investigation into possible criminal activity.
The district court dismissed
Baldwin’s complaint for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii), denied his IFP motion, and certified that the appeal was not
taken in good faith.
By moving to proceed IFP in this court, Baldwin is challenging the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into a litigant’s
good faith “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).
The district court did not err in dismissing the complaint for failure to
state a claim. Baldwin argues that the district court erred because it did not
apply the standard in Bailey v. Procunier, 744 F.2d 1166, 1168-69 (5th Cir.
1984). Bailey is inapposite as it concerns the standard for obtaining 28 U.S.C.
§ 2254 relief for the erroneous admission of prejudicial evidence. See Bailey,
744 F.2d at 1168-69. Baldwin’s Fourth Amendment claim concerning the
collection of his DNA lacks merit. “[A]lthough collection of DNA samples from
prisoners implicates Fourth Amendment concerns, such collections are
reasonable in light of an inmate’s diminished privacy rights, the minimal
intrusion involved, and the legitimate government interest in using DNA to
investigate crime.” Groceman v. United States Dep’t of Justice, 354 F.3d 411,
413 (5th Cir. 2004); see also Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.
Date Filed: 05/05/2015
Baldwin does not address or identify any error in the district court’s
dismissal of (1) his claim against defendants Abston, Dixon, Streeter, and
Sparkman; and (2) his claim challenging the classification change. By failing
to brief these issues, Baldwin has abandoned them on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
For the first time on appeal, Baldwin asserts that (1) his due process
rights were violated because he was placed in oppressive custody for merely
asserting his constitutional rights; and (2) his Fifth Amendment right against
self-incrimination was violated when he was forced to provide the DNA sample.
Baldwin may not raise an issue for the first time on appeal merely because he
believes that he might prevail if given the opportunity to try a different theory.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Because Baldwin has not shown that he will raise a nonfrivolous issue
on appeal, his IFP motion is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 219-20; see
5TH CIR. R. 42.2. Baldwin is WARNED that the dismissal of this appeal as
frivolous counts as a “strike” under § 1915(g), as does the district court’s
dismissal of his complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996).
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