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McKendall v. Stalder, 04-30945 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 04-30945 Visitors: 67
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
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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this opinion should not be published and is not precedent except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.

Source:  CourtListener

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