IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11396 Summary Calendar

CLIFFORD MEDLEY,

Plaintiff-Appellant,

versus

CITY OF AMARILLO, TX; POTTER COUNTY, TEXAS; VARIOUS UNKNOWN NAMED AGENTS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:97-CV-217 --------------------

October 5, 1999

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Clifford Medley, Texas prisoner # 824224, appeals the

district court’s dismissal of his

civil rights

action as frivolous pursuant to

(e)(2)(B)(i)

because it was time-barred. Medley argues that the district

court erred in dismissing his complaint on the basis of the

statute of limitations because it is an affirmative defense which

should be raised by the defendants after service of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11396 -2-

complaint. Although the defense of limitations is an affirmative

defense, the district court may raise the defense sua sponte in

making a § 1915(d) (now § 1915(e)(2)(B)(i)) frivolity

determination. Gartrell v. Gaylor,

(5th Cir.

1993).

Medley argues that he filed his original complaint naming

the unknown agents as defendants before the two-year period, that

the Clerk erred in failing to file and docket this complaint, and

that when he filed the complaint form which the Clerk had mailed

to him, he did not intend to file it as an amended complaint with

the effect of superseding his original complaint. Even if all of

this is accepted as true, the district court correctly applied

Jacobsen v. Osborne,

(5th Cir. 1998) in holding that

any amendment after the two-year period to substitute the names

of the unknown defendants would not relate back to the original

complaint.

Even if Medley’s claims against the City and County are not

time-barred, his claims are frivolous because his allegations

against these defendants are fanciful, delusional, and

conclusionary. "To establish county/municipality liability under

§ 1983 . . . a plaintiff must demonstrate a policy or custom

which caused the constitutional deprivation." Colle v. Brazos

County, Tex.,

(5th Cir. 1993). Medley’s

allegations of “policy” are conclusional and are thrown into his

complaints and other pleadings as nothing more than a device to

attempt to establish respondeat superior liability. Medley No. 98-11396 -3-

states in his brief that if he has failed to demonstrate custom

or policies he should be afforded an opportunity to amend his

complaint. Medley was given numerous opportunities to amend his

complaint and to make clear his claims against the defendants,

and he failed to do so except in the most conclusionary terms.

Further, his allegations regarding the officers’ and

deputies’ alleged use of devices which detached his “Achilles

heels” at a distance of 30 to 40 feet, and the alleged use of an

electronic device to scan his neck for a transponder placed under

his skin for identification purposes, are fanciful and delusional

and are subject to dismissal as frivolous. Denton v. Hernandez,

(1992).

Medley argues that the district court’s handling of his case

was erroneous in just about every respect. He lists a series of

alleged errors in the district court’s denial of various motions

and asks this court to review the district court’s actions for

abuse of discretion. He states that he cannot brief all of the

errors and he asks the court to review the record and enter the

judgments appropriately.

This Court has no procedure for plenary review of the

record. Pro se briefs must be liberally construed. Haines v.

Kerner,

(1972). Arguments, however, must be

briefed to be preserved. Brinkmann v. Abner,

(5th Cir. 1987); see Fed. R. App. P. 28(a)(9).

Medley argues that the district court abused its discretion

in denying him an extension of time to file his objections.

However, Medley states that “[e]ven if the objections were not No. 98-11396 -4-

heard, they were made various times prior to the drafting of the

magistrate judge’s Report and Recommendation. Plain errors are

present throughout the record.” Again, he asks this court “to

review the entire record for error of abuse of discretion and

violations of due process as well as for contrary to law.” He

does not state what his objections were or attempt to show how

they could have changed the outcome of the case. This issue is

inadequately briefed. Brinkmann,

.

Medley argues that the district court abused its discretion

in not ruling on his motion for appointment of counsel filed on

April 20, 1998, and that the court should have granted it. The

district court denied his motion in its order of adoption. The

district court did not abuse its discretion. Ulmer v.

Chancellor,

(5th Cir. 1982).

Medley’s appeal is without arguable merit and is frivolous.

See Howard v. King,

(5th Cir. 1983).

Because the appeal is frivolous, it should be dismissed. See 5th

Cir. R. 42.2. The dismissal of this appeal as frivolous counts

as a strike for purposes of

(g). We caution

Medley that once he accumulates three strikes, 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

(g).

DISMISSED AS FRIVOLOUS.