Guerra v. Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003

Charles R. Fulbruge III
Clerk
No. 03-40432
Conference Calendar

JUAN ANDRES GUERRA,

Plaintiff-Appellant,

versus

ORLANDO PEREZ,

Defendant-Appellee.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CV-540
--------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Juan Andres Guerra, Texas prisoner # 1016762, appeals the

dismissal of his pro se, in forma pauperis (“IFP”) 42 U.S.C.

§ 1983 lawsuit for failure to state a claim upon which relief may

be granted.

Guerra’s brief provides no cogent argument that the district

court erred in dismissing his claims. Although pro se briefs are

afforded liberal construction, see Haines v. Kerner, 404 U.S.

519, 520-21 (1972), even pro se litigants must brief arguments in

*
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that this opinion should not be published and is not precedent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.
 No. 03-40432
-2-

order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). Because Guerra does not address the bases for

the district court’s determination that the complaint failed to

state a claim, he has abandoned any challenge to the dismissal on

appeal. Accordingly, this appeal is DISMISSED as frivolous. See

28 U.S.C. § 1915(e)(2)(B)(i); 5TH CIR. R. 42.2.

The district court’s dismissal and this dismissal each count

as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba

v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). While this

appeal was pending, this court affirmed the dismissal of another

42 U.S.C. § 1983 suit filed by Guerra that also had been

dismissed by the district court for failure to state a claim.

See Guerra v. Thaler, No. 02-21313 (5th Cir. June 24, 2003)

(unpublished). The district court’s dismissal in Guerra v.

Thaler also counts as one strike for purposes of 28 U.S.C.

§ 1915(g). See Adepegba, 103 F.3d at 387-88. Guerra now has

accumulated three strikes, and he may not proceed 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, THREE-STRIKES BAR IMPOSED.