IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2007
No. 07-40204
Summary Calendar Charles R. Fulbruge III
Clerk
FARREL PAYNE
Plaintiff-Appellant
v.
ABBAS KHOSHDEL, Doctor; NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:06-CV-148
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Farrel Payne, Texas prisoner # 324893, appeals the district court’s
dismissal with prejudice, and as frivolous, of his civil rights complaint.
Subsequent to filing his brief in this court, Payne, who is appearing pro se, also
filed a request to supplement the record on appeal with additional documents,
including copies of two prison grievance forms filed after the district court had
*
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should not be published and is not precedent except under the limited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. 07-40204
rendered its decision. The court has construed Payne’s filing as a motion to
supplement the record on appeal.
Payne argues that he was in transit and did not receive the magistrate
judge’s report and recommendation until after the district judge adopted it and
entered judgment. The record does indicate that the district court entered its
judgment prior to the deadline allotted Payne for filing objections to the
magistrate judge’s report. This court will therefore apply a de novo standard of
review to this case. See McGill v. Goff, 17 F.3d 729, 732-33 (5th Cir. 1994).
Payne’s brief, like his motion to supplement the record, is poorly drafted
and often illegible. He has failed to set forth coherent arguments identifying
errors in the district court’s determinations and conclusions. Moreover, he has
failed to provide a clear argument, including relevant citations to the record,
that shows deliberate indifference to his medical needs or denial of access to the
courts. Nor has Payne shown that he fully exhausted his administrative
remedies where required.
Although pro se briefs are liberally construed, even pro se litigants must
brief arguments to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). When an appellant fails to identify error in the district court’s
decision, it is as if the appellant had not appealed that judgment, and this court
“will not raise and discuss legal issues that [Payne] has failed to assert.”
Brinkman v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Similarly, the failure to provide any legal or factual analysis of an issue
on appeal waives that issue. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d
256, 260 n.9 (5th Cir. 1995).
In viewing the record as a whole, Payne has failed to make a showing of
reversible error by the district court.
The district court in this proceeding determined that Payne’s claims were
frivolous. Because Payne has failed to raise an issue of arguable merit in this
court, this appeal is also dismissed as frivolous. See Howard v. King, 707 F.2d
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No. 07-40204
215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Payne is warned that the dismissal
of this appeal as frivolous, and the district court’s dismissal of his complaint as
frivolous, count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Payne is cautioned that if he
accumulates three strikes under § 1915(g), he will be unable to proceed in forma
pauperis (IFP) 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. Payne is also warned that further frivolous appeals will result in the
imposition of other sanctions, including monetary penalties and restrictions on
his ability to seek relief in this court or in a district court.
Payne’s motion to supplement the record is denied.
ALL OUTSTANDING MOTIONS DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.
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