Steele v. Travis County Corrtl , 274 F. App'x 342 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2008
No. 06-50965
Conference Calendar Charles R. Fulbruge III
Clerk
VALERIE STEELE
Plaintiff-Appellant
v.
TRAVIS COUNTY JAIL; ROBERT A PERKINS, also known as Judge Bob
Perkins; OFFICER B F FRANCIS; FNU MERKA; JOSEPH ZAHN, also known
as Don Zahn; NURSE KIM HUTCHINS; FNU KELLY; TRAVIS COUNTY;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE PAROLE BOARD; FBI
AGENTS; DEA AGENTS; TRAVIS COUNTY CORRECTIONAL COMPLEX
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CV-666
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Valerie Steele, formerly Texas prisoner # 1182994, appeals from the
dismissal of her 42 U.S.C. § 1983 action with prejudice as frivolous pursuant to
28 U.S.C. § 1915(e). Steele has filed numerous motions and an appellate brief
in which she elaborates on her claims. She has also filed evidence that was not
*
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should not be published and is not precedent except under the limited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. 06-50965
previously filed in the district court. Steele makes no legal argument with
respect to the district court’s reasons for dismissing her complaint as frivolous,
but she asks us to review the new evidence and to conclude based on it that the
district court erred in finding her complaint to be barred by the statute of
limitations.
A district court may dismiss an in forma pauperis (IFP) complaint as
frivolous under § 1915(e) if it lacks an arguable basis in law or fact. Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). We review a § 1915 dismissal as
frivolous for abuse of discretion. Id.
“An appellate court may not consider new evidence furnished for the first
time on appeal and may not consider facts which were not before the district
court at the time of the challenged ruling.” Theriot v. Parish of Jefferson, 185
F.3d 477, 491 n.26 (5th Cir.1999). Failure to identify an error in the district
court’s analysis is the same as if the appellant had not appealed the judgment.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Although pro se briefs are liberally construed, even pro se litigants must
brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993).
As Steele has not shown that the district court’s determination that her
complaint was frivolous was an abuse of discretion and has failed to identify any
error on the part of the district court, her appeal is dismissed as frivolous. See
5TH CIR. R. 42.2. Steele’s motions for an evidentiary hearing, augmentation of
record on appeal, oral argument, and appointment of counsel are denied. Any
other outstanding motions are also denied.
The district court’s dismissal of Steele’s complaint counts as a strike under
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). The dismissal of the instant appeal does not count as a strike because
Steele is no longer in prison. See § 1915(g). Steele is cautioned that if she
accumulates three strikes under § 1915(g), she will not be able to proceed IFP
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No. 06-50965
in any civil action or appeal filed while she is incarcerated or detained in any
facility unless she is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED; MOTIONS DENIED; SANCTION WARNING
ISSUED.
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