Leroy Smith v. Nathaniel Quarterman, et al

Filing 920100615

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Case: 09-41101 Document: 00511141952 Page: 1 Date Filed: 06/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-41101 Summary Calendar June 15, 2010 Lyle W. Cayce Clerk LEROY SMITH, Plaintiff-Appellant v. DIRECTOR NATHANIEL QUARTERMAN; WARDEN BAKER; DOCTOR THOMAS; VIRGINIA SCHAFER; JACK THOMPSON, Defendants-Appellees Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:09-CV-185 Before KING, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Leroy Smith, Texas prisoner # 177456, proceeding pro se, appeals the dismissal, without prejudice, of his civil-rights complaint, pursuant to his failure to exhaust administrative remedies. The dismissal of a complaint for such failure is reviewed de novo. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. * Case: 09-41101 Document: 00511141952 Page: 2 No. 09-41101 Date Filed: 06/15/2010 The Prison Litigation Reform Act (PLRA) states: "No action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail [or] prison . . . until such administrative remedies as are available are exhausted". 42 U.S.C. 1997e(a). Smith does not dispute the district court's ruling that he failed to exhaust his claims, which focused on defendants' alleged inattention to his medical needs. Nor does he claim any other error by the district court. Instead, he discusses the facts from his complaint and asks this court to grant him damages for his claimed abuse. (In addition, he contends, inter alia, that the PLRA was designed to favor defendants and asserts it should be "outlawed". Needless to say, this point is without merit.) Although pro se briefs are afforded liberal construction, see Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se litigants must nevertheless brief contentions in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). An appellant's failure to identify any error in the district court's analysis is the same as if he had not appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Smith's appeal is frivolous and, therefore, is dismissed. See Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988); 5 TH C IR. R. 42.2 (providing for dismissal of frivolous appeals). The dismissal of Smith's appeal as frivolous counts as a strike for purposes of 28 U.S.C. 1915(g). Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). See Adepegba v. if he Smith is warned: accumulates three strikes, he will be barred from proceeding 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). APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED. 2

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