Filed: Aug. 16, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 16, 2005 Charles R. Fulbruge III Clerk No. 04-30945 Conference Calendar ANTONIO J. MCKENDALL, Plaintiff-Appellant, versus RICHARD L. STALDER; C. M. LENSING, Defendants-Appellees. - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:04-CV-371-C-M1 - Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges. PER CURIAM:* Antonio J. McKendall
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 16, 2005 Charles R. Fulbruge III Clerk No. 04-30945 Conference Calendar ANTONIO J. MCKENDALL, Plaintiff-Appellant, versus RICHARD L. STALDER; C. M. LENSING, Defendants-Appellees. - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:04-CV-371-C-M1 - Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges. PER CURIAM:* Antonio J. McKendall,..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-30945
Conference Calendar
ANTONIO J. MCKENDALL,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; C. M. LENSING,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-371-C-M1
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Antonio J. McKendall, Louisiana state prisoner # 234949, has
filed a motion for leave to proceed in forma pauperis (IFP) upon
an appeal of the district court’s dismissal of his 42 U.S.C.
§ 1983 civil rights action. By moving for IFP status, McKendall
is challenging the district court’s certification that IFP status
should not be granted on appeal because his appeal is not taken
*
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this opinion should not be published and is not precedent except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. 04-30945
-2-
in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
McKendall has failed to challenge specifically the district
court’s dismissal with prejudice of his claim that the defendants
have a duty to notify him regarding chemical releases at area
chemical plaints. Although this court liberally construes pro se
briefs, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972), the
court requires arguments to be briefed in order to be preserved.
Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993). Because
McKendall has failed to address this ruling, he has abandoned the
issue on appeal. See
id. He also has failed to show that the
district court erred by dismissing his other four claims without
prejudice for not having exhausted his administrative remedies
relative to them. See 42 U.S.C. § 1997(e); Wendell v. Asher,
162 F.3d 887, 890-92 (5th Cir. 1998).
Therefore, McKendall’s request for IFP status is DENIED, and
his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2. The dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996).
McKendall therefore has two strikes under 28 U.S.C. § 1915(g),
including one based on the district court’s dismissal. McKendall
is warned that if he accumulates three strikes pursuant to
28 U.S.C. § 1915(g), he may not 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 28 U.S.C. § 1915(g).
No. 04-30945
-3-
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.