Case: 09-41101 Document: 00511141952 Page: 1 Date Filed: 06/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2010
No. 09-41101
Summary Calendar 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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 Date Filed: 06/15/2010
No. 09-41101
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). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Smith is warned: if he
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