Calletano Galarza-Morales v. Terry Means, et al
UNPUBLISHED OPINION ORDER FILED. [16-10476 Dismissed as Frivolous] Judge: PEH, Judge: CH, Judge: JEG. Mandate pull date is 05/18/2017; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Calletano Galarza-Morales [8209452-2] [16-10476]
Date Filed: 03/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
March 27, 2017
Lyle W. Cayce
TERRY R. MEANS, United States District Judge; JEFFREY L. CURETON,
United States Magistrate Judge; SHAWN SMITH, Assistant United States
Attorney; WILLIAM R. BIGGS, Federal Court Attorney; ZELMA SHANNON,
United States Probation Officer; MARK A. BRONIE, United States Probation
Officer; MARC MOORE, United States Immigration and Customs
Enforcement Field Director; CARLOS PEREZ, United States Department of
Homeland Security Immigration Officer; JOHN DEO #1, Border Agent, United
States Border Customs and Protection; JOHN DEO #2, Supervisor, United
States Immigration and Customs Enforcement,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-140
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 03/27/2017
Calletano Galarza-Morales, federal prisoner # 41291-177, moves for
leave to proceed in forma pauperis (IFP) in his appeal from the dismissal of his
civil rights complaint, filed pursuant to Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He 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).
Galarza-Morales’s conclusional assertions of error by the district court,
without citation to the record or cogent legal argument, do not show that his
appeal involves legal points arguable on their merits and that it is not
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Although
pro se briefs are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972),
even pro se litigants must brief arguments in order to preserve them, Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Because Galarza-Morales has not shown that the district court erred in
decertifying his IFP status, the request for leave to proceed IFP is DENIED.
See Baugh, 117 F.3d at 202. The appeal is DISMISSED. See id. at 202 & n.24;
5TH CIR. R. 42.2. The district court’s dismissal of Galarza-Morales’s complaint
as frivolous and this court’s dismissal of his appeal as frivolous count as strikes
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). If Galarza-Morales accumulates three strikes he will no
longer be allowed 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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