Vasquez v. Julye

U.S. Court of Appeals for the Fifth Circuit
Vasquez v. Julye, 115 F. App'x 292 (5th Cir. 2004)

Vasquez v. Julye

Opinion

PER CURIAM: *

Paul Vasquez, Texas prisoner # 1007091, filed a 42 U.S.C. § 1983 complaint alleging that he had been denied adequate medical treatment for his broken foot and that the defendants were deliberately indifferent to his serious medical needs. The district court determined that Vasquez had failed to exhaust administrative remedies before filing suit and that his complaint failed to overcome the defendants’ Eleventh Amendment immunity and failed to specify personal involvement by each defendant. The court dismissed the action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

In his appellate brief, Vasquez argues the merits of his deliberate-indifference claim. He does not address any of the district court’s conclusions that he had not exhausted administrative remedies, overcome the defendants’ Eleventh Amendment immunity, or specified personal involvement by each defendant. Failure to identify an error in the district court’s analysis is the same as if the appellant had not appealed the judgment. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Vasquez has failed to contest the district court’s reasons for dismissing his complaint, he has waived appellate review of these issues. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Vasquez’s appeal therefore lacks arguable merit and is dismissed as frivolous. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

*293 Vasquez is warned that the district court’s dismissal of his complaint for failure to state a claim and the dismissal of the instant appeal as frivolous count as strikes under 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We warn Vasquez that once he accumulates three strikes, he may not 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 28 U.S.C. § 1915(g).

APPEAL DISMISSED; STRIKE WARNING ISSUED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Reference

Full Case Name
Paul VASQUEZ, Plaintiff-Appellant, v. Dr. JULYE, University of Texas Medical Branch Assigned Doctor; Fernald, Warden; Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, Defendants-Appellees
Status
Unpublished