Case: 09-40665 Document: 00511199306 Page: 1 Date Filed: 08/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 10, 2010
No. 09-40665
Summary Calendar Lyle W. Cayce
Clerk
DAVID L. SHAW,
Plaintiff-Appellant
v.
KAREN NORMAN, Property Officer, Beto Unit; SHERRI L. MILLIGAN,
Property Officer, Beto Unit; CHAPLAIN KISSER,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:07-CV-443
Before KING, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
David L. Shaw, federal prisoner # 689847, filed a civil rights complaint,
alleging that certain property officers at the Beto Unit improperly confiscated
and destroyed his property, including his Koran, prayer rug, and prayer beads,
and that the Chaplain at the Beto Unit removed Shaw from the list of inmates
who observe the Muslim holiday of Ramadan.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-40665
The district court dismissed some of Shaw’s claims, but allowed him to
proceed to trial on his First Amendment and Religious Land Use and
Institutionalized Persons Act (RLUIPA) claims. The jury found that the
defendants did not violate Shaw’s First Amendment rights. The court ruled on
Shaw’s RLUIPA claim, finding that the confiscation of the prayer rug and prayer
beads did not violate RLUIPA, but that the confiscation of the Koran did.
Following entry of judgment, Shaw moved for a new trial. The district court
denied the motion. This appeal followed.
Shaw’s briefing sets forth facts and conclusional statements, but does not
identify specific errors in the jury verdict or the district court’s rulings. While
this court liberally construes pro se briefs, see Haines v. Kerner, 404 U.S. 519,
520 (1972), we require arguments to be pleaded and briefed in order to be
preserved. Yohey v. Collins, 985 F.2d 222, 224)25 (5th Cir. 1993). When an
appellant does not identify error in the district court’s analysis, it is the same as
if the appellant had not appealed the judgment. Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, Shaw has
abandoned any challenge to the jury verdict or district court’s rulings.
Shaw’s briefing asserts several claims that were not presented to the
district court. These claims will not be considered. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Furthermore, construing Shaw’s
November 18, 2009 filing as a motion to request the production of transcripts at
the Government’s expense, we DENY the motion because Shaw has not satisfied
his burden to show that he will raise a nonfrivolous issue on appeal. 28 U.S.C.
§ 753(f); see Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).
Shaw’s appeal is without merit and, thus, dismissed as frivolous. See 5 TH
C IR. R. 42.2; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The dismissal
of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387)88 (5th Cir. 1996). Shaw is cautioned
that the accumulation of three strikes would mean that he may not proceed in
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No. 09-40665
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 § 1915(g).
APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.
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