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

                                                 FILED
                                                                         September 2, 2009
                                     No. 08-10946
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT MARTINEZ,

                                           Plaintiff - Appellant

v.

BUS DRIVER, Name Unknown, GEO Employee Lieutenant in Rank;
FEDERAL CORRECTIONAL OFFICER, Name Unknown, GEO Employee;
UNKNOWN WALKER, Correctional Officer, GEO Employee; WARDEN NFN
GOINGS, GEO; LAW LIBRARY SUPERVISOR, Name Unknown,

                                           Defendants - Appellees


                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:08-CV-463


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Robert Martinez, Texas prisoner # 1188230, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint.               The district court dismissed
Martinez’s complaint for a number of reasons, one of which was his failure to
exhaust administrative remedies.             Martinez’s appeal does not adequately



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10946

challenge the district court’s dismissal of his suit for failure to exhaust. For this
reason, the district court’s dismissal is AFFIRMED.
                                   I. BACKGROUND
       Robert Martinez filed this pro se suit under 42 U.S.C. § 1983 complaining
about various prison conditions to which he was subjected. Martinez alleged
that during a fifteen and a half hour bus ride he was denied adequate bathroom
facilities in violation of his constitutional rights.1 Martinez also complained that
his rights were violated when prison officials allowed a bus driver with a poor
driving history to drive the bus, resulting in an accident in which Martinez
contends he was injured. Additionally, Martinez alleges that the law library in
his prison is inadequate. The district court reviewed Martinez’s complaint and
then dismissed all of his claims for three reasons: (1) failure to exhaust
administrative remedies; (2) failure to state a claim upon which relief can be
granted; and (3) being frivolous.
                             II. STANDARD OF REVIEW
       This court reviews de novo a district court’s dismissal of a prisoner’s
complaint for failure to exhaust and for failure to state a claim upon which relief
can be granted. Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). This court
reviews under an abuse of discretion standard the district court’s finding that
Martinez’s claims were frivolous. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999).
                                   III. DISCUSSION
       Martinez’s appeal raises two issues for the court. First, the court must
determine whether the district court’s dismissal was proper. Second, if the




       1
          Because of our disposition of this appeal, we need not address whether the alleged
acts are violations of Martinez’s constitutional rights. We in no way condone the type of
conduct alleged to have occurred on this bus ride if, indeed, Martinez’s allegations are true.

                                              2
                                       No. 08-10946

district court’s dismissal was proper, the court must then determine whether
Martinez’s appeal is frivolous. We will address each issue in turn.
A. The District Court’s Dismissal
        The district court dismissed Martinez’s suit because he admitted on the
face of his complaint that he failed to exhaust his administrative remedies before
bringing suit. Martinez brought this suit by using a form complaint issued by
the district court. Question III of the form complaint asked Martinez whether
he had exhausted his administrative remedies before bringing suit; Martinez
answered, “No.” The district court relied upon Martinez’s answer to dismiss his
suit under 42 U.S.C. § 1997e(a), which requires all prisoners to exhaust their
administrative remedies before bringing suit with respect to their prison
conditions.
        In Jones v. Bock, the Supreme Court held that prisoners, under 42 U.S.C.
§ 1997e(a), “are not required to specially plead or demonstrate exhaustion in
their complaints.” 549 U.S. 199, 216 (2007). In Carbe v. Lappin, this court
stated that a “district court cannot by local rule sidestep Jones by requiring
prisoners to affirmatively plead exhaustion.”               492 F.3d at 328.         Carbe’s
prohibition has been interpreted by this court to encompass questions in “form
complaints” issued by district courts that are designed to elicit “information
about [a prisoner’s] exhaustion of administrative remedies.”                Torns v. Miss.
Dep’t       of   Corr.,   No.   07-60256,    301    F.   App’x    386,    389    (5th    Cir.
2008)(unpublished)(stating a court cannot consider information regarding
exhaustion that is elicited by the court’s own form complaint).2 We need not
decide today how far Carbe’s prohibition extends, because Martinez failed to
raise this legal argument in his brief.



        2
        While unpublished opinions are not precedent, we cite this case as illustrative of how
we have addressed this situation in the past.

                                              3
                                   No. 08-10946

       “‘Although we liberally construe the briefs of pro se appellants, we also
require that arguments must be briefed to be preserved.’” Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip. Corp., 846 F.2d
1026, 1028 (5th Cir. 1988)). “We will not raise and discuss legal issues that [an
appellant] has failed to assert.” Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). In his brief, Martinez does not contest
the district court’s use of his answer to Question III to dismiss his complaint for
failure to exhaust. The only argument in Martinez’s brief that can be construed
to challenge the district court’s exhaustion finding is his reference to letters he
sent to various prison officials and agencies about his complaints. Martinez’s
reference to such letters, even liberally construed, does not give rise to the
argument that the district court erroneously considered his answer to Question
III.   Martinez’s failure to raise this legal argument means that he has
abandoned it, and we will not consider it. Hughes v. Johnson, 191 F.3d 607, 612-
13 (5th Cir. 1999).
       Since Martinez has failed to adequately challenge the district court’s
conclusion that he did not exhaust his administrative remedies, the district
court’s dismissal must be affirmed because Martinez’s answer to Question III
“makes clear” on the “the [face of his] complaint” that he “failed to exhaust” his
administrative remedies before bringing suit.        Carbe, 492 F.3d at 328; see
Ferrington v. La. Dep’t of Corr., 315 F.3d 529, 532 (5th Cir. 2002) (affirming a
district court’s dismissal of a complaint under 42 U.S.C. § 1997e(a) for failure to
exhaust administrative remedies).
B. The Frivolousness of Martinez’s Appeal
       Because of the potential for a filing bar under 28 U.S.C. §1915, the final
question before the court is whether Martinez’s appeal is frivolous. In this
circuit, “[a]n appeal is frivolous if the result is obvious or the arguments of error
are wholly without merit.” Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.

                                         4
                                        No. 08-10946

1988); see also Ozee v. Am. Council on Gift Annuities, Inc., 110 F.3d 1082, 1097
(5th Cir. 1997) (“In this circuit, a frivolous appeal is either one that pursues legal
points not arguable on the merits or one in which the result is obvious.”), vacated
and remanded on other grounds, 522 U.S. 1011 (1997).
       This court has stated that an appeal is “frivolous [when] . . . the result is
obvious from the [district court’s correct,] comprehensive and decisive exposition
of the law.”     Coghlan, 852 F.2d at 810.            The district court’s opinion below
correctly analyzed the relevant statute and case law regarding exhaustion, and
its exposition of the law made it clear that Martinez’s suit had to be dismissed
because of his failure to exhaust. Because the district court was clear on this
point of law, it should have been obvious to Martinez that this court would also
dismiss his suit because of his failure to exhaust if he did not set forth any
cogent reason that the district court’s determination was incorrect.                       Since
Martinez’s appeal was “taken ‘in the face of clear, unambiguous, dispositive
holdings of this’” court, his appeal must be deemed frivolous.3 Coghlan, 852 F.2d
at 811.
       Because Martinez’s appeal is frivolous, it counts as Martinez’s third strike
under 28 U.S.C. § 1915(g).4 Because Martinez has collected three strikes under
28 U.S.C. § 1915(g), he is now barred from proceeding in forma pauperis in any


       3
        Martinez’s appeal might have had some merit if he had raised and adequately briefed
a defense to his failure to exhaust. See Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th
Cir. 2001) (stating 42 U.S.C. § 1997e’s “exhaustion requirement is not jurisdictional and may
be subject to certain defenses such as waiver, estoppel or equitable tolling”). Martinez,
however, failed to do so, and because of his failure, he abandoned any such defenses. See
Yohey, 985 F.2d at 225 (stating that “arguments must be briefed to be preserved”).
       4
         Martinez received his first strike from this court in Martinez v. Tex. Dep’t Corr., 235
F. App’x 335, 335 (5th Cir. 2007). Martinez received his second and third strike in this case,
one for the original dismissal and one for the frivolous appeal. See 28 U.S.C. § 1915(g) (stating
that a strike is to be given when a court dismisses a suit for failure to “state a claim upon
which relief may be granted”); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)
(counting as two strikes this court’s affirmation of a district court’s dismissal and this court’s
dismissal of the subsequent appeal as frivolous).

                                                5
                                 No. 08-10946

civil action or appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury.
                            IV. CONCLUSION
      For the reasons stated herein, the district court’s dismissal is
AFFIRMED, and a 28 U.S.C. § 1915(g) BAR IS IMPOSED.




                                       6
