     Case: 10-31269     Document: 00511536996         Page: 1     Date Filed: 07/12/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 12, 2011
                                     No. 10-31269
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

NOEL DEAN,

                                                  Plaintiff-Appellant

v.

BURL CAIN; AMANDA SMITH; CONNIE MCCANN,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CV-671


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Noel Dean, Louisiana prisoner # 309740, appeals the 28 U.S.C. §§ 1915A
and 1915(e)(2)(B) dismissal as frivolous of his 42 U.S.C. § 1983 lawsuit, asserting
that prison officials had stolen or misplaced his inmate funds, in violation of his
constitutional rights. Dean argues that dismissal of his lawsuit without an
evidentiary hearing or an opportunity to amend was error. He additionally
contends that the district court erroneously dismissed his lawsuit for failure to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-31269    Document: 00511536996       Page: 2   Date Filed: 07/12/2011

                                   No. 10-31269

exhaust when he in fact has exhausted the administrative remedies available to
him.
       Dean misapprehends the basis for the district court’s dismissal. His suit
was dismissed not for failure to exhaust but as frivolous for failure to raise a
constitutional claim. Dean has abandoned by failing to brief any argument
challenging the district court’s conclusion that his lawsuit did not implicate a
constitutional claim. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Because Dean fails to brief any challenge the district court’s reasons for
dismissing his suit, he has abandoned the sole ground for appeal. See id.;
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). The appeal is thus without arguable merit and is dismissed as frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
       Both the dismissal of the instant appeal and the district court’s dismissal
of his complaint count as strikes for purposes of the in forma pauperis (IFP)
provisions of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). Dean has at least two prior strikes. Accordingly, he has
accumulated more than three strikes and is now barred from proceeding 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 § 1915(g).
       APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED.




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