Andre Hurrey v. Patsy Bell, et al

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Andre Hurrey v. Patsy Bell, et al

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Case: 09-11089

Document: 00511191461

Page: 1

Date Filed: 08/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11089 S u m m a r y Calendar August 2, 2010 Lyle W. Cayce Clerk

A N D R E WILLIAM HURREY, P la in t if f -A p p e lla n t v. P A T S Y BELL; Warden Tulia Unit, in her personal capacity only; STATE OF T E X A S , in its personal capacity only, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 2:09-CV-137

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* A n d r e William Hurrey, Texas prisoner # 1413337, appeals the district c o u r t's dismissal of his pro se, in forma pauperis 42 U.S.C. § 1983 action with p r e ju d ic e as frivolous and without prejudice pursuant to FED. R. CIV. PRO. 1 2 (b )(1 ) and for failure to state a claim. Hurrey seeks to have his § 1983 c o m p la in t reinstated and raises numerous issues on appeal.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-11089

Document: 00511191461 Page: 2 No. 09-11089

Date Filed: 08/02/2010

H u r r e y failed to raise the majority of his arguments before the district c o u r t. This court generally does not address arguments raised for the first time o n appeal. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 2 0 0 F.3d 307, 316-17 (5th Cir. 2000) ("It is a bedrock principle of appellate r e v ie w that claims raised for the first time on appeal will not be considered."). Moreover, Hurrey fails to brief any argument regarding the district court's d is m is s a l of his § 1983 complaint as frivolous in part, pursuant to Rule 12(b)(1) in part, and for failure to state a claim in part. Failure to identify any error in t h e district court's analysis is the same as if the appellant had not appealed the ju d g m e n t . Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5 t h Cir. 1987). Although pro se briefs are afforded liberal construction, 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). Therefore, Hurrey has abandoned any challenge to the district court's dismissal o f his civil rights complaint. See Brinkmann, 813 F.2d at 748. This appeal is w it h o u t arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 2 1 9 -2 0 (5th Cir. 1983). It is therefore DISMISSED. See 5TH CIR. R. 42.2. This court's dismissal of Hurrey's appeal as frivolous counts as a strike for p u r p o s e s of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5 t h Cir. 1996). Hurrey should be cautioned that if he accumulates three strikes h e will no longer be allowed to proceed IFP in any civil action or appeal filed w h ile he is incarcerated or detained in any facility unless he is under imminent d a n g e r of serious physical injury. See § 1915(g). A P P E A L DISMISSED, SANCTION WARNING ISSUED.

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