Lorenzo Escudero v. Lorie Davis, Director

Case: 17-41258 Document: 00515342363 Page: 1 Date Filed: 03/12/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-41258
March 12, 2020
Lyle W. Cayce
LORENZO ESCUDERO, Clerk
Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:17-CV-577
Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
Appellant Lorenzo Escudero challenges the dismissal without prejudice
of his claims alleging constitutional deficiencies related to both his conviction
and the conditions of his confinement. The district court dismissed his petition
because Escudero failed to comply with the Magistrate Judge’s order directing
him to specify whether his lawsuit was a petition for a writ of habeas corpus
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-41258 Document: 00515342363 Page: 2 Date Filed: 03/12/2020
No. 17-41258
or a civil rights lawsuit. Despite the Magistrate Judge’s warning the case
would be dismissed if he failed to submit either a habeas form or a 42 U.S.C. §
1983 form within 30 days, Escudero responded only by denouncing the
deficiency order for making unconscionable and unconstitutional demands of
him.
Federal Rule of Appellate Procedure 28 provides, “[t]he appellant’s brief
must contain . . . a statement of the issues presented for review.” Fed. R. App.
P. 28(a)(5). “Despite [a] policy of liberally construing briefs of pro se litigants
and applying less stringent standards to parties proceeding pro se than to
parties represented by counsel, pro se parties must still brief the issues and
reasonably comply with the standards of Federal Rule of Appellate Procedure
28.” Hodge v. E. Baton Rouge Par. Sheriff’s Office, 394 F. App’x 124, 126 (5th
Cir. 2010). When a party fails to brief a claim, the court need not consider this
claim. Id.; Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Fed. R. App. P.
28(a)[(8)(a)] requires that the appellant’s argument contain the reasons he
deserves the requested relief ‘with citation[s] to the authorities, [] and parts of
the record relied on.’” (quoting Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.
1990))). Indeed, failing to identify an error in the district court’s legal analysis
is the same as not appealing the judgment. Brinkmann v. Dallas Cty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Escudero makes no effort to contest the district court’s basis for
dismissal. His briefing does not mention the Magistrate Judge’s decision or the
order requiring him to fill out either a § 1983 or a habeas form. Even construing
his argument liberally, nothing in either the initial or the supplemental brief
can fairly be read as relating to the basis for the district court’s dismissal.
Because Escudero has not complied with Rule 28, his appeal fails. See generally
McGee v. Sturdivant, 628 F. App’x 317, 317–18 (5th Cir. 2016); Cooper v.
Wilkinson, 547 F. App’x 558, 559 (5th Cir. 2013).
2
Case: 17-41258 Document: 00515342363 Page: 3 Date Filed: 03/12/2020
No. 17-41258
Accordingly, the judgment of the district court is AFFIRMED.
3