Morris Miller v. Holeman ( 2010 )

Case: 09-41241 Document: 00511173888 Page: 1 Date Filed: 07/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2010
No. 09-41241
Summary Calendar Lyle W. Cayce
Clerk
MORRIS MILLER,
Plaintiff-Appellant
v.
LIEUTENANT HOLEMAN; WARDEN RUPERT,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:09-CV-328
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Morris Miller, proceeding pro se, sued the defendants under 42 U.S.C.
§ 1983, alleging that he was wronged in an incident at the institution in which
he is incarcerated. The district court dismissed the action for failure to state a
claim and for frivolousness. Miller appeals.
Miller contends on appeal that his constitutional right of protection from
cruel and unusual punishment was violated by the defendants. Given that
Miller fails to present any argument or cite any authority in support of his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41241 Document: 00511173888 Page: 2 Date Filed: 07/15/2010
No. 09-41241
newly-raised issue of cruel and unusual punishment, however, he fails to
preserve it for review. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)
(“‘[A]rguments must be briefed to be preserved.’”). Additionally, Miller fails to
identify any error in the district court’s analysis; this is equivalent to a failure
to appeal the district court’s decision. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey, 985 F.2d at 224-25.
Miller’s allegations are bald conclusions, and conclusory allegations do not
suffice to raise a nonfrivolous appellate issue under § 1983. Mowbray v.
Cameron County, Tex., 274 F.3d 269, 278 (5th Cir. 2001). Because Miller’s
complaint “lacks an arguable basis in law or fact,” it is frivolous. Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001); see also 5 TH C IR. R. 42.2.
The dismissal of Miller’s complaint as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g), and the dismissal of his appeal as frivolous
counts as a second strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Miller is warned that if he accumulates three strikes under § 1915(g)
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).
AFFIRMED.
2