United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2007
Charles R. Fulbruge III
Clerk
No. 06-30781
Summary Calendar
ANDREW BOUDREAUX,
Plaintiff-Appellant,
versus
DR. ALAN PEREGO, Medical Director; STEVE RADER, Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CV-143
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Andrew Boudreaux, Louisiana prisoner # 239866, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal and
a motion for appointment of counsel. By moving for IFP,
Boudreaux is challenging the district court’s certification that
his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Boudreaux’s attempt to
incorporate his district court pleadings by reference is an
insufficient means of raising arguments in this court. See
*
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this opinion should not be published and is not precedent except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. 06-30781
-2-
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
In his IFP motion, Boudreaux makes no allegations or
arguments that would support a nonfrivolous issue for appeal
concerning the district court’s dismissal pursuant to
FED. R. CIV. P. 12(b)(6) of Warden Steve Rader and Colonel
Steve L. Thomas from Boudreaux’s civil rights lawsuit. In his
motion for appointment of counsel, Boudreaux argues that he
endured four months of pain while he was forced to work in the
prison fields. He asserts that he tried to resolve his problem
administratively but that the warden and the colonel ignored his
requests for another work assignment. Boudreaux argues that the
warden and the colonel were wrongfully dismissed from the case
and that they pressured his doctor not to issue a change to
Boudreaux’s work status.
Even taking the facts alleged in the district court against
Warden Rader and Colonel Thomas as true, Boudreaux failed to show
that they were deliberately indifferent to his serious medical
needs. See Jackson v. City of Beaumont Police Dept., 958 F.2d
616, 618 (5th Cir. 1992); Farmer v. Brennan, 511 U.S. 825, 837,
839-40, 847 (1994). Accordingly, the district court did not err
in granting in part the defendants’ Rule 12(b)(6) motion to
dismiss Boudreaux’s claims against Warden Rader and Colonel
Thomas.
The district court granted Dr. Alan Perego’s motion for
summary judgment and dismissed Boudreaux’s claims against
No. 06-30781
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Dr. Perego. In his IFP motion to this court, Boudreaux does not
challenge the district court’s reasons for concluding that
Dr. Perego was not deliberately indifferent to his serious
medical needs. In his motion for appointment of counsel,
Boudreaux states only that Dr. Perego refused to issue him a duty
status that restricted him to work that was not harmful or
painful to his feet until after his § 1983 suit was filed and
that the doctor’s earlier refusals to order the duty status were
the result of the doctor’s deliberate indifference to Boudreaux’s
medical problem.
Although pro se briefs are afforded liberal construction,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se
litigants must brief arguments in order to preserve them. Yohey,
985 F.2d at 224-25. Because Boudreaux has not briefed the bases
for the district court’s dismissal of his claims against
Dr. Perego, this court need not address it. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
Boudreaux has failed to show that his appeal involves
“‘legal points arguable on their merits (and therefore not
frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
His motion to proceed IFP on appeal is therefore denied, and the
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
No. 06-30781
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& n.24. Boudreaux’s motion for appointment of counsel is denied.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Boudreaux’s motion to present oral argument is also denied.
Our dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Boudreaux is warned that
if he accumulates three strikes, he will be barred under
§ 1915(g) from bringing a civil action or an appeal from a
judgment in a civil action or proceeding under § 1915 unless he
is under imminent danger of serious physical injury.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.