Martinez v. Texas Department Corrections

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 16, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41382
Summary Calendar
ROBERT MARTINEZ
Plaintiff-Appellant
v.
TEXAS DEPARTMENT CORRECTIONS
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CV-176
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Robert Martinez, formerly Texas prisoner # 1188230, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for lack of prosecution.
Martinez had raised a number of claims regarding a prison disciplinary hearing
and various conditions of confinement. The district court dismissed without
prejudice after Martinez failed to comply with an order to amend his complaint.
Martinez’s appellate brief fails to adequately address the district court’s
basis for dismissing his complaint. Although this court liberally construes pro
*
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should not be published and is not precedent except under the limited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. 06-41382
se briefs, see Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Because Martinez has failed to brief the relevant issue
for appeal, his appeal is frivolous and is dismissed. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Martinez’s motion for
production of documents also is denied.
Martinez is cautioned that the dismissal of his appeal as frivolous counts
as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). He is also cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to 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 § 1915(g).
MOTION FOR PRODUCTION OF DOCUMENTS DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.
2