     Case: 10-60803     Document: 00511569427         Page: 1     Date Filed: 08/11/2011




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

                                                                            FILED
                                                                          August 11, 2011
                                     No. 10-60803
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAMES H. STERN,

                                                  Plaintiff-Appellant

v.

HINDS COUNTY, MISSISSIPPI; MALCOLM MCMILLIAN, Sheriff,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:07-CV-348


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
        While a pretrial detainee, James H. Stern, now Mississippi prisoner
# 130001, filed an in forma pauperis (IFP) lawsuit under 42 U.S.C. § 1983
against Hinds County and the Hinds County Sheriff Malcolm McMillin.1 The
district court dismissed his claim regarding exposure to tuberculosis while
caring for another inmate with the disease as frivolous and for failure to state


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        In his district court filings and appeal brief, the sheriff spells his last name as
“McMillin.”
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                                  No. 10-60803

a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(i) and
(ii). The district court also dismissed on summary judgment Stern’s claim
regarding exposure to disease during an unsanitary haircut, and the court found
that this claim was frivolous under § 1915(e)(2)(B)(i). Stern contends that he
stated claims for injunctive relief, nominal damages, and punitive damages even
in the absence of a physical injury.
      We review de novo the dismissal of Stern’s claim regarding being forced
to care for another inmate as frivolous and for failure to state a claim on which
relief may be granted. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
We also review de novo the district court’s summary judgment dismissal of
Stern’s claim regarding the unsanitary haircut. See Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011); Baker v. Putnal, 75 F.3d 190, 197 (5th Cir.
1996).
      Stern’s request for injunctive relief became moot upon his transfer from
the Hinds County Detention Center in Jackson, Mississippi, to various facilities
of the Mississippi Department of Corrections. See Herman v. Holiday, 238 F.3d
660, 665 (5th Cir. 2001). He does not dispute the district court’s finding that his
allegations regarding exposure to diseases failed to state a nonfrivolous claim for
compensatory damages in light of 42 U.S.C. § 1997e(e). Although pro se briefs
are afforded liberal construction, even pro se litigants must brief arguments in
order to preserve them. Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).
      The district court did not err in failing to consider nominal damages
regarding Stern’s claim for exposure to tuberculosis while caring for another
inmate because he did not seek such relief. See Mayfield v. Texas Dep’t of
Criminal Justice, 529 F.3d 559, 606 (5th Cir. 2008). Stern failed to seek nominal
damages for his claim regarding the unsanitary haircut until he filed his
objections to the MJ’s third report, which was more than three years after filing
his complaint and more than two years after the defendants answered. By



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                                  No. 10-60803

failing to address the district court’s ruling that his nominal damages argument
was untimely, Stern has abandoned this issue. See Mapes, 541 F.3d at 584.
      In addition, Stern cannot recover punitive damages from Hinds County
under § 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271
(1981). Although punitive damages can be assessed against an individual
defendant sued in his individual capacity, Stern only sued Sheriff McMillin in
his “official and supervisory” capacities. An official-capacity claim “is, in all
respects other than name, to be treated as a suit against the [government]
entity,” Kentucky v. Graham, 473 U.S. 159, 166 (1985), and Stern cannot recover
punitive damages from Hinds County. See City of Newport, 453 U.S. at 271.
Also, § 1983 “does not create supervisory or respondeat superior liability.” Oliver
v. Scott, 276 F.3d 736, 742 (5th Cir. 2002).
      Thus, Stern has failed to demonstrate error in the district court’s dismissal
of his claim regarding being forced to care for another inmate as frivolous and
for failure to state a claim on which relief may be granted, or in the summary
judgment dismissal of his unsanitary haircut claim.          The district court’s
dismissal of Stern’s lawsuit under § 1915(e)(2)(B)(i) and (ii) counts as one strike
under 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 386-88 (5th
Cir. 1996). We caution Stern that if he accumulates three strikes, he will not be
permitted to proceed IFP in any civil action or appeal filed while incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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