Dewight McBride, Sr. v. Buchanan Virgin , 420 F. App'x 326 ( 2011 )

Case: 10-40598 Document: 00511423166 Page: 1 Date Filed: 03/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 24, 2011
No. 10-40598
Summary Calendar Lyle W. Cayce
Clerk
DEWIGHT VAUGHN MCBRIDE, SR.,
Plaintiff-Appellant,
versus
BUCHANAN VIRGIN; OWEN MURRAY; WARDEN RUPERT;
DOCTOR GRAY WRIGHT; UNKNOWN SCHAFER;
DOCTOR JACK THOMPSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:09-CV-519
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40598 Document: 00511423166 Page: 2 Date Filed: 03/24/2011
No. 10-40598
Proceeding pro se and in forma pauperis (“IFP”), Dewight Vaughn Mc-
Bride, Sr., Texas prisoner # 1337667, filed a 42 U.S.C. § 1983 complaint con-
tending that the defendants were negligent in failing to treat him properly for
diarrhea. After reviewing medical records and a Martinez report submitted by
the Texas Attorney General’s Office, the district court dismissed for failure state
a claim and as frivolous. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
McBride’s appellate brief consists of two pages. His argument section had
only one sentence: “This Court has a duty to insure that prisoners are properly
cared for as the standards of constitutional magnitude dictates.” McBride does
not challenge the magistrate judge’s lengthy reasons for concluding that he
failed to allege an Eighth Amendment deliberate-indifference claim and that Dr.
Murray and Warden Rupert were not liable as supervisors or that the retaliation
claim against Dr. Wright was frivolous.
Where an appellant fails to identify any error in the district court’s analy-
sis, it is the same as if he had not appealed. Brinkmann v. Dallas Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are af-
forded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro
se litigants must brief arguments to preserve them. Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). McBride has abandoned any challenge to the judg-
ment. See Brinkmann, 813 F.2d at 748.
Because the appeal is without arguable merit and is frivolous, see Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983), it is DISMISSED. See 5 TH C IR. R.
42.2. This dismissal counts as a strike under 28 U.S.C. § 1915(g), as does the
district court’s dismissal. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). We caution McBride that if he accumulates three strikes, he will not
be permitted to proceed IFP in any civil action or appeal filed while incarcerated
or detained in any facility unless he is under imminent danger of serious physi-
cal injury. See § 1915(g).
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