Miller v. Bradley , 124 F. App'x 252 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-50405
Conference Calendar
DAVID W. MILLER,
Plaintiff-Appellant,
versus
JOHN BRADLEY, WILLIAMSON COUNTY DISTRICT ATTORNEY’S
OFFICE; CEDAR PARK POLICE DEPARTMENT; JOHN A. MASPERO,
SHERIFF,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CV-388-SS
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
David W. Miller, Texas prisoner #1174744, appeals the
district court’s grant of summary judgment and dismissal of his
42 U.S.C. § 1983 claims against Williamson County Sheriff John
Maspero. As he does not challenge the dismissal of his claims
against the remaining defendants, those claims have been
abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). Moreover, we do not have jurisdiction to review the
*
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that this opinion should not be published and is not precedent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. 04-50405
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magistrate judge’s denial of Miller’s motion for appointment of
counsel. See Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379
(5th Cir. 1989).
Miller’s civil rights suit alleged that he was denied
medical treatment during his pre-trial confinement at the
Williamson County prison. Miller does not address the district
court’s reasons for granting summary judgment in favor of Sheriff
Maspero in his individual and official capacities. Failure to
identify an error in the district court’s analysis is the same as
if the appellant had not appealed the judgment. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Because Miller has failed to contest the district court’s
reasons for granting Maspero’s summary judgment motion, he has
waived appellate review of those issues. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993). Moreover, Miller has failed
to show that there was another appropriate party for him to sue
such that the district court’s dismissal of his complaint without
allowing him leave to amend to name another defendant was an
abuse of discretion. See Dayse v. Schuldt, 894 F.2d 170, 174
(5th Cir. 1990); Parker v. Fort Worth Police Dep’t, 980 F.2d
1023, 1025-27 (5th Cir. 1993).
Miller’s appeal lacks arguable merit and is DISMISSED AS
FRIVOLOUS. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The dismissal of Miller’s appeal as frivolous
No. 04-50405
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counts as one strike under 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We warn Miller that
once he accumulates three strikes, he may not proceed 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.