IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2008
No. 07-20515
Summary Calendar Charles R. Fulbruge III
Clerk
GREGORY D JOHNSON
Plaintiff-Appellant
v.
RONALD L KELLY
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CV-344
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gregory D. Johnson, Texas inmate # 652074, appeals the district court’s
grant of summary judgment in favor of defendant Ronald L. Kelly and the
dismissal of his 42 U.S.C. § 1983 complaint. Johnson argues that the district
court erred in its findings and conclusions on remand regarding Kelly’s intent
to retaliate. We review a grant of summary judgment de novo using the same
standard used by the district court. Amburgey v. Corhart Refractories Corp., 936
F.2d 805, 809 (5th Cir. 1991).
*
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should not be published and is not precedent except under the limited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. 07-20515
Johnson has not addressed the district court’s conclusions that he failed
to show two other required elements for a valid retaliation claim: an adverse act
and causation. See Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006).
Therefore, he has abandoned any challenge to the district court’s conclusions
regarding these elements. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are afforded
liberal construction, 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).
Johnson’s motion for appointment of appellate counsel is denied. See
Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990).
Johnson’s appeal is without arguable merit and therefore frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2. The 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, 387-88 (5th Cir. 1996). Johnson is cautioned that if he
accumulates three strikes, he will no longer be allowed 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 DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.