John Hickman v. Red River Health Department

Case: 18-31037 Document: 00515128428 Page: 1 Date Filed: 09/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-31037 FILED
Summary Calendar September 23, 2019
Lyle W. Cayce
Clerk
JOHN BENJAMIN HICKMAN,
Plaintiff - Appellant
v.
RED RIVER HEALTH DEPARTMENT; RED RIVER ELEMENTARY
SCHOOL; SHERIFF’S DEPARTMENT RED RIVER PARISH; YASHICA
THOMAS TURNER; CHARLOTTE THOMAS TAYLOR; JOHNNY TAYLOR;
JOEY WIGGIN,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CV-195
Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
John Benjamin Hickman, former Louisiana prisoner #455235, appearing
pro se and in forma pauperis, appeals the district court’s dismissal of his 42
U.S.C. § 1983 civil rights complaint, with prejudice, as frivolous and for failure
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-31037 Document: 00515128428 Page: 2 Date Filed: 09/23/2019
No. 18-31037
to state a claim upon which relief can be granted. We review the dismissal de
novo. See Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).
Hickman’s complaint mentioned his negative human-immunodeficiency-
virus status, his heterosexuality, and his Muslim identity. The complaint,
however, did not make any specific allegations regarding how defendants
violated his constitutional rights. Likewise, Hickman’s appellate brief does not
address the claimed reason the district court erred in dismissing his complaint.
Although pro se briefs are liberally construed, Haines v. Kerner, 404 U.S.
519, 520–21 (1972), pro se litigants must brief contentions in order to preserve
them. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Accordingly,
Hickman has abandoned any challenge to the dismissal of his complaint. Id.
The district court’s dismissal of Hickman’s complaint, filed while he was
incarcerated, counts as a strike for purposes of 28 U.S.C. § 1915(g) (prohibiting
in forma pauperis civil actions and appeals by prisoners after three prior
dismissals for frivolity). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 135 S.
Ct. 1759, 1762–64 (2015). The district court also dismissed Hickman’s previous
42 U.S.C. § 1983 complaint as frivolous. See Hickman v. Norman, 2013 WL
4044433, at *1 (W.D. La. 8 Aug. 2013). Hickman, therefore, has two strikes for
purposes of 28 U.S.C. § 1915(g).
Because Hickman fails to raise any issues of arguable merit, his appeal
is dismissed as frivolous. See 5th Cir. R. 42.2; see also Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Although the dismissal of an appeal as frivolous
will ordinarily count as a separate strike, for purposes of 28 U.S.C. § 1915(g),
see Adepegba, 103 F.3d at 388, this dismissal will not count because Hickman
was not incarcerated or otherwise detained upon its commencement. See 28
U.S.C. § 1915(g).
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No. 18-31037
Hickman is WARNED that, if he accumulates three strikes, pursuant
to 28 U.S.C. § 1915(g), he will not be able to proceed in forma pauperis in any
civil action or appeal 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).
DISMISSED.
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