Troy Chew v. Figueroa , 582 F. App'x 543 ( 2014 )

Case: 13-60724 Document: 00512800348 Page: 1 Date Filed: 10/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-60724 FILED
October 10, 2014
Lyle W. Cayce
TROY CHEW, Clerk
Plaintiff-Appellant
v.
FIGUEROA, Warden Tallahatchie County Correctional Facility; PHILLIPS,
Warden Tallahatchie County Correctional Facility; TALLAHATCHIE
COUNTY CORRECTIONAL FACILITY; CORRECTIONAL CORPORATION
OF AMERICA; NICHOLAS SINNOTT, Kitchen Supervisor; MR. NELSON,
Sued in official and individual capacity; MR. BENNY ANDERSON, Head
Kitchen Supervisor,
Defendants-Appellees
______________________________________________________________________
TROY L. CHEW,
Plaintiff-Appellant
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND
REHABILITATION, CDCR; CORRECTIONAL CORPORATION OF
AMERICA; TALLAHATCHIE COUNTY CORRECTIONAL FACILITY, TCCF;
F. E. FIGUEROA, Warden, TCCF; NICHOLAS SINNOTT, Supervisor, TCCF;
MR. NELSON, Sued in his official and individual capacity; MR. BENNY
ANDERSON, Head Kitchen Supervisor,
Defendants-Appellees
Case: 13-60724 Document: 00512800348 Page: 2 Date Filed: 10/10/2014
No. 13-60724
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:12-CV-135
USDC No. 2:12-CV-209
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Troy Chew, Mississippi prisoner # P49667, filed a civil rights complaint
under 42 U.S.C. § 1983 against officials of the Tallahatchie County
Correctional Facility (TCCF) in Tutwiler, Mississippi, the facility itself, and
the Correctional Corporation of America in the Northern District of
Mississippi. Chew alleged that he was working as a butcher at TCCF and
slipped and fell in the kitchen injuring himself. Chew filed a similar complaint
in the Eastern District of California. This complaint was transferred to the
Northern District of Mississippi, and the two cases were consolidated.
The district court dismissed the consolidated complaints for failure to
state a claim upon which relief could be granted. The district court found that
Chew’s suit was barred by the doctrines of res judicata and collateral estoppel.
Chew moved for leave to appeal in forma pauperis (IFP). The district court
denied the motion and certified that the appeal was not taken in good faith
under 28 U.S.C 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3).
Chew challenges the certification that his appeal is not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry is “limited
to whether the appeal involves legal points arguable on their merits (and
* 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.
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Case: 13-60724 Document: 00512800348 Page: 3 Date Filed: 10/10/2014
No. 13-60724
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
On appeal, Chew does not address the reason for dismissal but makes
the conclusional argument that the district court was biased against him.
Although pro se pleadings 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). In
view of Chew’s complete failure of his argument to address the reasons for
dismissal, he has abandoned any challenge to the district court’s application of
the doctrines of res judicata and collateral estoppel to his current complaints.
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see also Brinkmann
v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). As he
has abandoned the only possible issues for appeal, Chew’s appeal is without
arguable merit and therefore frivolous. See Howard, 707 F.2d at 219-20.
Accordingly, the IFP motion is DENIED. See Baugh, 117 F.3d at 202. Further,
because the appeal does not involve legal points arguable on their merits, the
appeal is DISMISSED AS FRIVOLOUS. See Howard, 707 F.2d at 220; 5TH
CIR. R. 42.2. Chew’s motion for the appointment of counsel is also DENIED.
See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985)
The district court’s dismissal and the dismissal of this appeal count as
two strikes against Chew. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996). Chew is cautioned that, should he accumulate three strikes, he will
not be permitted to proceed IFP in any civil action or appeal filed while
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
IFP DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.
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