Montez Lesha Bishop, a federal prisoner, appealed the United States District Court for the Southern District of Mississippi's sua sponte dismissal of his complaint. The district court had dismissed the case, which was filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, finding the claims frivolous and failing to state a claim because they were not cognizable under Bivens law. Bishop moved for leave to proceed in forma pauperis (IFP) and for reconsideration, challenging the district court's certification that the appeal was not taken in good faith. However, his appellate filings did not directly address the district court's reasoning regarding the noncognizability of his claims.
The Fifth Circuit, in a per curiam opinion, held that Bishop failed to meaningfully challenge the district court's finding that his Bivens claims were noncognizable. Although pro se briefs are afforded liberal construction, the court noted that when an appellant fails to identify any error in the district court's analysis, it is treated as if the appellant had not appealed the decision. Bishop's brief raised eight issues unrelated to the core dismissal of his complaint, leaving the critical issue of whether his claims were cognizable under Bivens unchallenged. Consequently, the court found the appeal lacked arguable merit and was frivolous. The court cited precedent establishing that such dismissals count as strikes under the three-strikes rule.
The appeal is dismissed, and Bishop's motion to proceed in forma pauperis is denied. This dismissal, combined with the district court's prior dismissal, counts as two strikes against Bishop under 28 U.S.C. § 1915(g). If Bishop accumulates a third strike while incarcerated, he will be barred from proceeding in forma pauperis in any future civil action or appeal unless he can demonstrate he is under imminent danger of serious physical injury.
Podcast (federal-narrative-summaries): Play in new window | Download