Opinion

Brown v. Luna

Court
Court of Appeals for the Fifth Circuit
Filed
May 28, 2025
Status
Unpublished
Nature of suit
Prisoner w/ out Counsel
Cited by
0 cases
Authority
More cited than 35.8%

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.

Case: 24-50732 Document: 34-1 Page: 2 Date Filed: 05/27/2025

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

2

Case: 24-50732 Document: 34-1 Page: 3 Date Filed: 05/27/2025

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).

3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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