Shorty v. Sparkman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 29, 2009
No. 08-60796
Summary Calendar Charles R. Fulbruge III
Clerk

EDDIE JAMES SHORTY

Plaintiff-Appellant

E L SPARKMAN, Commissioner of Corrections, Individually and in His Official
Capacity; LAWRENCE KELLY, Superintendent for Mississippi State
Penitentiary, Individually and in His Official Capacity; JOHN ROGERS,
Associate Warden at Unit 32, Individually and in His Official Capacity; EMMIT
SPARKMAN; HENDERSON THOMAS, Captain

Defendants-Appellees

Appeal from the United States District Court
for Northern the District of Mississippi
USDC No. 4:07-CV-150

Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Eddie James Shorty, Mississippi prisoner # 26507, appeals the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 suit and the denial of his
motions for injunctive relief. Shorty, however, fails to address the district court’s
reasons for denying him relief. Because Shorty does not address on appeal the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60796

district court’s reasons for dismissing his civil rights action and for denying him
injunctive relief, he has abandoned the only issues arguably on appeal. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Moreover, to the extent
that Shorty is arguing that his cell at Unit 29-G is too small and that he does not
receive enough time in the dayroom and outside, those claims are raised for the
first time on appeal and will not be considered by this court. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Shorty’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is therefore dismissed. 5 TH C IR.
R. 42.2. The district court’s dismissal and the dismissal of Shorty’s appeal count
as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Shorty 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 in imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.