Darryl Parker v. Thomas Butler, et al, No. 09-30357 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-30357 Summary Calendar December 16, 2009 Charles R. Fulbruge III Clerk DARRYL D PARKER, Plaintiff-Appellant v. THOMAS J BUTLER; A F ARMOND, JR.; SONNY ARMOND, JR., Defendants-Appellees DARRYL D PARKER, Plaintiff-Appellant v. JEFFERSON PARISH DISTRICT ATTORNEY S OFFICE, Defendant-Appellee Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 2:08-CV-4422 USDC No. 2:08-CV-4419 No. 09-30357 Before DAVIS, SMITH and DENNIS, Circuit Judges. PER CURIAM:* Darryl D. Parker, Louisiana prisoner # 300414, has filed a motion for leave to proceed in forma pauperis (IFP) on appeal from the district court s dismissal of his consolidated 42 U.S.C. § 1983 complaints. The district court dismissed Parker s § 1983 claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), reasoning that Parker s claims against an assistant district attorney failed due to absolute prosecutorial immunity, Parker failed to allege that his defense counsel acted under the color of state law, and Parker s § 1983 claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). For the same reasons, the district court denied Parker s motion to appeal IFP and certified that Parker s appeal was not taken in good faith. By moving for leave to proceed IFP, Parker is challenging the district court s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Parker s motion contains no argument challenging any of the grounds of the district court s certification decision. Although pro se briefs are liberally construed, even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Parker has not shown that the district court s certification was incorrect, and his motion for leave to proceed IFP is denied. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The instant appeal is without arguable merit and is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 219-20; 5 TH C IR. R. 42.2. Parker is cautioned that the dismissal of his § 1983 suit by the district court pursuant to § 1915(e)(2)(B)(i) and our dismissal of this appeal as frivolous both count as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Parker is also cautioned that if he accumulates three * 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. 2 No. 09-30357 strikes under § 1915(g), he may not 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). MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED. 3
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