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Alexander v. Allen, 05-40837 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-40837 Visitors: 41
Filed: Aug. 28, 2006
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 28, 2006 Charles R. Fulbruge III Clerk No. 05-40837 Conference Calendar RONALD LEE ALEXANDER, Plaintiff-Appellant, versus TRACY P. ALLEN, Classification Officer; CLARENCE MOSLEY, Warden, Defendants-Appellees. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:04-CV-8 - Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM:* Ronal
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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 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40837
                        Conference Calendar



RONALD LEE ALEXANDER,

                                    Plaintiff-Appellant,

versus

TRACY P. ALLEN, Classification Officer; CLARENCE MOSLEY,
Warden,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 1:04-CV-8
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Ronald Lee Alexander, Texas prisoner # 830441, appeals from

the district court’s denial of his motion to reopen his 42 U.S.C.

§ 1983 lawsuit, which the district court had dismissed in part

for failure to exhaust available administrative remedies, as

frivolous and for failure to state a claim upon which relief

could be granted.   This court reviews the denial of Alexander’s

motion to reopen, construed as a motion for relief from judgment

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,

     *
       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. 05-40837
                                  -2-

for an abuse of discretion.     Seven Elves, Inc. v. Eskenazi,

635 F.2d 396
, 402 (5th Cir. 1981).

     Although pro se pleadings are afforded liberal construction,

Haines v. Kerner, 
404 U.S. 519
, 520 (1972), even pro se litigants

must adequately brief arguments in order to properly present them

for consideration.     Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th

Cir. 1993); FED. R. APP. P. 28(a)(9).   Alexander has failed to

adequately brief his challenge to the denial of his Rule 60(b)

motion.    Moreover, his arguments regarding the underlying issues

of his § 1983 lawsuit lack merit.

     As the instant appeal lacks arguable merit, it is dismissed

as frivolous.    See 5TH CIR. R. 42.2; Howard v. King, 
707 F.2d 215
,

219-20 (5th Cir. 1983).    The dismissal of Alexander’s § 1983

lawsuit and this appeal each count as a strike under 28 U.S.C.

§ 1915(g).    See Adepegba v. Hammons, 
103 F.3d 383
, 388 (5th Cir.

1996).    We caution Alexander that, if he accumulates a total of

three strikes, he may no longer 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).

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

Source:  CourtListener

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