Mitchell v. Crowley ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 22, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20795
Conference Calendar
CRAYTON ANTHONY MITCHELL,
Plaintiff-Appellant,
versus
DONNA CROWLEY, Lieutenant; MARK MORROW, Officer; BRADLEY
BACHMANN, Physician Assistant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-2305
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Crayton Anthony Mitchell, Texas prisoner # 625288, appeals
the district court’s dismissal as frivolous pursuant to 28 U.S.C.
§ 1915A(b)(1) of his pro se, in forma pauperis 42 U.S.C. § 1983civil rights complaint. Mitchell seeks damages for deliberate
indifference to his medical needs and allegedly inadequate
medical care for injuries sustained in a fall.
*
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that this opinion should not be published and is not precedent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. 02-20795
-2-
The only issue Mitchell has briefed in his appeal is that
the district court denied him due process and obstructed justice
when it dismissed his complaint before the defendants filed an
answer and without allowing him to conduct discovery. Mitchell’s
argument is contrary to the plain language of 28 U.S.C.
§ 1915A(a)-(b), which directs the district court to review and
dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity if the court determines, inter alia, that the
complaint is frivolous. 28 U.S.C. § 1915A(a) provides that the
district court’s review is to take place “before docketing, if
feasible or, in any event, as soon as practicable after
docketing,” and dismissal may be ordered before service of
process. See In re Jacobs, 213 F.3d 289, 290 (5th Cir. 2000).
Mtichell’s argument is therefore without merit.
Mitchell does not contest the frivolousness finding of the
district court, and he has therefore abandoned that issue. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987) (issues that are not adequately briefed are
waived on appeal).
Mitchell’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.
No. 02-20795
-3-
The dismissal of this appeal and the district court’s
dismissal each count as a “strike” for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Mitchell is WARNED that if he accumulates three
strikes he may not proceed IFP 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
28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.