Henderson v. County Criminal Ct ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11167
Conference Calendar
ANTONIO RENAULD HENDERSON,
Plaintiff-Appellant,
versus
COUNTY CRIMINAL COURT #7,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-505-D
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April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Antonio Renauld Henderson, Texas prisoner # 98060475, was a
Texas pretrial detainee at the time he filed this 42 U.S.C.
§ 1983 civil rights action. Henderson does not address the
district court’s dismissal of his damage claim against the state
trial court and judge as frivolous. He argues merely that he is
entitled to a trial and to confront the witnesses against him.
When an appellant fails to identify any error in the district
court’s analysis, it is as if the appellant had not appealed that
judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813
*
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that this opinion should not be published and is not precedent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. 99-11167
-2-
F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are
afforded liberal construction, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972), even pro se litigants must brief arguments in
order to preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993). Because Henderson did not address the district
court’s dismissal of his damages claims as frivolous, he has
abandoned the only issue before this court on appeal. See Searcy
v. Houston Lighting & Power Co., 907 F.2d 562, 564 (5th Cir.
1990). However, any claim against the state trial court is
barred by the Eleventh Amendment. See Washington Legal
Foundation v. Texas Equal Access to Justice Foundation, 94 F.3d
996, 1005 (5th Cir. 1996); Farias v. Bexar County Bd., 925 F.2d
866, 875 n.9 (5th Cir. 1991). Further, the trial judge has
judicial immunity from Henderson’s damage claim. See Hulsey v.
Owens, 63 F.3d 354, 356 (5th Cir. 1995).
Henderson also sought immediate release. Henderson does not
address the district court’s dismissal of his claim for habeas
relief for failure to exhaust available state remedies. Because
Henderson did not address the district court’s dismissal of his
habeas claim, he has abandoned the only issue before this court
on appeal, see Searcy, 907 F.2d at 564, and this court need not
address it. See Brinkmann, 813 F.2d at 748.
Henderson’s appeal is without arguable merit and thus is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Henderson’s appeal is DISMISSED as frivolous. See 5TH
CIR. R. 42.2.
No. 99-11167
-3-
Henderson is cautioned that the district court’s dismissal
of this action as frivolous counts as a “strike” under § 1915(g)
after this court issues its decision dismissing this appeal as
frivolous and that the dismissal of this appeal as frivolous also
counts as a “strike” under § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Henderson accumulated two
“strikes” in the district court’s dismissal of a previous § 1983
action and this court’s dismissal of his appeal as frivolous.
See Henderson v. Criminal District Court #3, No. 99-10863 (5th
Cir. Feb. 16, 2000)(unpublished). Henderson is advised that he
has now accumulated at least three “strikes” under § 1915(g), and
he will not be able to 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
§ 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.