Spradley v. Andrews

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005

Charles R. Fulbruge III
Clerk
No. 04-30803
Conference Calendar

KENNETH SPRADLEY,

Plaintiff-Appellant,

versus

O. KENT ANDREWS, TOMMY DAVIS, BUCK DUPLECHAIN,

Defendants-Appellees.

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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:02-CV-1546-PM-APW
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Kenneth Spradley (Spradley), Louisiana prisoner # 101526,

appeals the district court’s summary judgment in favor of the

defendants in his 42 U.S.C. § 1983 action claiming that he

suffered injuries as a result of excessive force by prison

officials. On appeal, Spradley does not address any of the facts

or issues asserted by the defendants in the motion for summary

judgment. He fails to challenge the decision of the district

court in granting the motion.

*
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this opinion should not be published and is not precedent except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. 04-30803
-2-

Although pro se briefs are afforded liberal construction,

Haines v. Kerner, 404 U.S. 519, 520 (1972), arguments must be

briefed to be preserved. Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). Because Spradley failed to brief any of the

issues raised in the granting of the defendants’ motion for

summary judgment, he has abandoned any issues before this court.

Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999).

Spradley’s appeal is without arguable merit and, therefore, is

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983); 5th Cir. R. 42.2.

Spradley previously filed a 42 U.S.C. § 1983 action which

was dismissed by the district court as frivolous. Spradley v.

Batiste, No. 96-22-B-1 (M.D. La. Jan. 31, 1996). The dismissal

of the prior § 1983 action and the dismissal of the instant

appeal as frivolous count as two strikes under 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th

Cir. 1996). Spradley is cautioned that once he accumulates three

strikes, he will not be able to 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; SANCTION WARNING ISSUED.