Wright v. USDC Western Dist ( 2023 )

Case: 22-51035 Document: 00516737825 Page: 1 Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-51035
Summary Calendar FILED
____________ May 4, 2023
Lyle W. Cayce
Kelvin Lionell Wright, II, Clerk
Plaintiff—Appellant,
versus
United States District Court Western District of
Texas, San Antonio Division,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:22-CV-753
______________________________
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam: *
Kelvin Lionell Wright, II, federal prisoner # 39615-380 and
proceeding pro se, appeals the district court’s: 28 U.S.C. § 1915A(b)(1)
dismissal with prejudice of his complaint (under 42 U.S.C. § 1983) as
frivolous; and dismissal without prejudice pursuant to Federal Rule of Civil
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-51035 Document: 00516737825 Page: 2 Date Filed: 05/04/2023
No. 22-51035
Procedure 41(b) for failure to prosecute and to comply with a show-cause
order.
Wright fails to challenge the reasons for the district court’s dismissal;
therefore, he abandons any challenge he may have had to the court’s
judgment. E.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)
(“Although we liberally construe the briefs of pro se appellants, we also
require that arguments must be briefed to be preserved.” (citation omitted));
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (stating our court “will not raise and discuss legal issues” that
appellant “failed to assert”). Accordingly, we dismiss the appeal as
frivolous. See 5th Cir. R. 42.2.
The district court’s dismissal of Wright’s complaint and our dismissal
of his appeal each count as strikes under 28 U.S.C. § 1915(g). E.g., Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on other
grounds by Coleman v. Tollefson, 575 U.S. 532, 534 (2015) (explaining
Congress intended “both the dismissal in district court and the separate
dismissal of the appeal as frivolous” count as individual strikes against
appellant (emphasis in original)). Wright is WARNED: if he accumulates
a total of three strikes, he may not proceed in forma pauperis (IFP) in any civil
action or appeal while he is incarcerated or detained in any facility unless he
is under imminent danger of serious physical injury. See § 1915(g). As
Wright is not proceeding IFP in the instant appeal, he is also WARNED:
sanctions—including dismissal, monetary sanctions, and restrictions on his
ability to file pleadings in this court and any court subject to this court’s
jurisdiction—may be imposed in response to future frivolous filings.
DISMISSED; STRIKE IMPOSED; SANCTION
WARNING ISSUED.
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