Joseph Fowler v. Whitfield ( 2017 )

Case: 16-10465 Document: 00514159912 Page: 1 Date Filed: 09/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-10465 September 18, 2017
Summary Calendar
Lyle W. Cayce
Clerk
JOSEPH BERNARD FOWLER, also known as Eugene Bernard Fowler, also
known as Joe Fowler, also known as Eugene Fowler,
Plaintiff–Appellant,
v.
MR. NFN WHITFIELD; OLIVER BELL, Chairman of Texas Board of
Corrections; JAMIE BAKER, Warden; JOE MILBERN, Assistant Warden;
ANTHONY MARTINEZ, Captain; ALFREDA CARREON, Captain; SANDRA
TYRA, Grievance Investigator II; B. PARKER, Regional Director/Assistant,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-290
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Joseph Bernard Fowler, Texas prisoner # 1812422, appeals the district
court’s dismissal of his civil rights lawsuit as frivolous and for failure to state
a claim on which relief may be granted. See 28 U.S.C. §§ 1915A(b), 1915(e)(2);
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10465 Document: 00514159912 Page: 2 Date Filed: 09/18/2017
No. 16-10465
42 U.S.C. § 1997e(c)(1). Although his brief repeats some of his allegations in
the district court, he fails to address the basis for the district court’s dismissal
of his claims. We liberally construe pro se briefs, but “even pro se litigants
must brief arguments in order to preserve them.” Mapes v. Bishop, 541 F.3d
582, 584 (5th Cir. 2008). Fowler’s failure to point to any error in the district
court’s ruling is in practical effect the same as if the judgment had not been
appealed. See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Accordingly, we dismiss his appeal as frivolous. See 5TH
CIR. R. 42.2.
The dismissal in the district court and our dismissal on appeal each
count as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). The district court also dismissed Fowler’s
complaints as frivolous in Fowler v. Exec. Dir. of Pardons and Paroles, No. 2:05-
cv-00235 (N.D. Tex. Feb. 1, 2016), and Fowler v. Exec. Dir. of Pardons and
Paroles, No. 2:05-cv-00249 (N.D. Tex. Feb. 1, 2016). Because he has
accumulated at least three strikes under § 1915(g), Fowler is barred from
proceeding 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).
We deny Fowler’s motions for appointment of counsel, see Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), and his “omnibus motion
questioning the court,” see Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d
362, 368 n.5 (5th Cir. 1995).
APPEAL DISMISSED; MOTIONS DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
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