Small v. Cole

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2007

Charles R. Fulbruge III
No. 05-11244 Clerk
Summary Calendar

JIMMIE LEE SMALL,

Plaintiff-Appellant,

versus

D. COLE, Warden; S. DAMRON, Captain;
NFN SUTTON, Unit Health Authority;
LEONARD COWDEN, Physician Assistant; RONALD LACY, DR.;
KENNETH WILKS, Lieutenant; OSCAR J. JUARES, Sergeant;
NFN LAYTON, Sergeant,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Texas
No. 2:04-CV-180
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Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Jimmie Lee Small, a Texas prisoner proceeding pro se and in

forma pauperis, appeals the dismissal of his 42 U.S.C. § 1983 civil

rights complaint pursuant to 42 U.S.C. §§ 1915(e)(2) and 1915A as

frivolous and for failure to state a claim upon which relief could

be granted. Small argues that defendants were deliberately indif-

*
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opinion should not be published and is not precedent except under the limited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. 05-11244
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ferent to his serious medical needs because they did not refer him

to a dermatologic or cosmetic specialist and did not order labora-

tory tests. Small asserts that defendants did not ensure that

prison barbers followed infection control policies and did not

provide photographs of his alleged injuries. Small contends that

he was subjected to cruel and unusual punishment in violation of

the Eighth Amendment because defendants disregarded his medical

authorization to forego close shaving and ordered him to be

clean-shaven.

Small does not specifically challenge the district court’s an-

alysis of his claims, nor does he urge that the court erred in

determining that he failed to present an arguable or non-frivolous

issue for appeal. Rather, he merely re-urges the claims raised in

his initial and supplemental complaints and lists his observations

of breaches in prison infection control policies in the barbershop.

Although this court liberally construes pro se briefs, arguments

must be briefed to be preserved. Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993). Because Small has failed to challenge the

district court’s bases for dismissing his complaints, he has aban-

doned these issues. See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987) (holding that the failure

to identify error in the district court’s analysis is the same as

if appellant had not appealed).

Small’s appeal is without arguable merit and is dismissed as

frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
 No. 05-11244
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219-20 (5th Cir. 1983). The dismissal of Small’s complaint as

frivolous and this dismissal count as strikes under 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.

1996). Small is warned that if he accumulates a third strike, 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).

Small’s motions for production of documents, supplementation

of his brief on appeal, and appointment of counsel are denied.

APPEAL DISMISSED; MOTIONS DENIED; SANCTION WARNING ISSUED.