Martinez v. Texas Department Corrections

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                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                             August 16, 2007
                   FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 06-41382
                              Summary Calendar


ROBERT MARTINEZ

                                           Plaintiff-Appellant

v.

TEXAS DEPARTMENT CORRECTIONS

                                           Defendant-Appellee


                Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 1:04-CV-176


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Robert Martinez, formerly Texas prisoner # 1188230, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for lack of prosecution.
Martinez had raised a number of claims regarding a prison disciplinary hearing
and various conditions of confinement. The district court dismissed without
prejudice after Martinez failed to comply with an order to amend his complaint.
      Martinez’s appellate brief fails to adequately address the district court’s
basis for dismissing his complaint. Although this court liberally construes pro

      *
      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should not be published and is not precedent except under the limited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. 06-41382

se briefs, see Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Because Martinez has failed to brief the relevant issue
for appeal, his appeal is frivolous and is dismissed. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Martinez’s motion for
production of documents also is denied.
      Martinez is cautioned that the dismissal of his 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). He is also cautioned that if he accumulates three strikes
under § 1915(g), 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 § 1915(g).
      MOTION FOR PRODUCTION OF DOCUMENTS DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.




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