The opinion
Case: 24-50732 Document: 34-1 Page: 1 Date Filed: 05/27/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 24-50732 May 27, 2025
Summary Calendar
____________ Lyle W. Cayce
Clerk
Darryl Lynn Brown,
Plaintiff—Appellant,
versus
Julia Luna, Special Review Board; Marissa Clay, Special Review
Board,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:24-CV-931
______________________________
Before Higginbotham, Jones, and Oldham, Circuit Judges.
Per Curiam: *
Darryl Lynn Brown, Texas prisoner # 455872, appeals the dismissal
of his 42 U.S.C. § 1983 complaint challenging the denial of his request for
special review of the denial of his release on mandatory supervision. The
district court dismissed without prejudice his habeas claims for lack of
jurisdiction as an unauthorized successive 28 U.S.C. § 2254 application. It
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 24-50732
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e) Brown’s claims
for monetary damages against the appellees as barred by sovereign immunity.
It found Brown’s remaining claims were frivolous under § 1915(e) and
dismissed them with prejudice as barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). Brown timely appealed. He also filed a motion for
appointment of counsel.
According to Brown, Julia Luna and Marissa Clay misapplied the law
by denying his request for special review of the denial of mandatory
supervision. Brown does not seek habeas relief or challenge the dismissal of
his habeas claims on appeal. Cf. 28 U.S.C. § 2253(c). As for his non-habeas
claims, Brown argues their merits but does not address sovereign immunity
or the Heck bar. Although we liberally construe pro se litigants’ briefs, the
litigant must still brief his arguments before this court can consider them.
Davis v. Lumpkin, 35 F.4th 958, 962 n.1 (5th Cir. 2022). When an appellant
fails to identify any error in the district court’s analysis, it “is the same as if
he had not appealed that judgment.” Brinkmann v. Dallas Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Brown has failed to
identify any error in the district court’s dismissal of his claims, he has
abandoned any challenge to the district court’s decision on appeal. See Davis,
35 F.3d at 962 n.1; see also Brinkmann, 813 F.2d at 748. Accordingly, Brown’s
appeal is DISMISSED as frivolous. See 5th Cir. R. 42.2. Brown’s
motion for appointment of counsel is DENIED.
The district court’s dismissal of Brown’s § 1983 claims pursuant to
§ 1915(e) counts as a strike under § 1915(g). See Brown v. Megg, 857 F.3d 287,
290-92 (5th Cir. 2017); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 462-63
(5th Cir. 1998); see also Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020)
(addressing dismissal without prejudice). The dismissal of Brown’s appeal
as frivolous also counts as a strike under § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on other grounds by Coleman
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No. 24-50732
v. Tollefson, 575 U.S. 532, 534 (2015). Brown is WARNED that he now has
at least two strikes and that if he accumulates three strikes under § 1915(g),
he will not be able to proceed in forma pauperis 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 28 U.S.C. § 1915(g).
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