     Case: 12-40919       Document: 00512235190         Page: 1     Date Filed: 05/08/2013




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

                                                                            FILED
                                                                            May 8, 2013
                                     No. 12-40919
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ANTONIO M. FUENTES, SR.,

                                                  Plaintiff-Appellant

v.

JIM BJORNSON,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:10-CV-478


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Antonio M. Fuentes, Sr., Texas prisoner # 1020350, appeals the summary
dismissal of his 42 U.S.C. § 1983 suit against physical therapist Jim Bjornson
for damages allegedly resulting from ill-fitting medical footwear. The magistrate
judge recommended granting summary judgment in favor of Bjornson based in
part upon a determination that Fuentes’s claims arising before July 6, 2008,
were barred by the statute of limitations. With respect to the remaining claim--
that Bjornson instructed his assistant not to use a measuring tool to measure

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40919     Document: 00512235190      Page: 2    Date Filed: 05/08/2013

                                  No. 12-40919

Fuentes’s foot during an August 2008 appointment--the magistrate judge
determined that it was meritless because there were no damages, as Fuentes
admitted that the boots ordered during the appointment fit correctly. After a de
novo review, the district court adopted the magistrate judge’s report and
recommendation and granted the motion for summary judgment.
      Proceeding pro se, Fuentes does not address the timeliness of his claims
in his opening brief. Nor does he dispute the determination that no damages
resulted from Bjornson’s actions during the August 2008 appointment. Instead,
Fuentes asserts generally that Bjornson was deliberately indifferent to his
serious medical needs because Bjornson knowingly failed to address his footwear
issues for 19 months. Fuentes also discusses a lawsuit he filed against the
medical clinic in the early 1990s and an allegation that Bjornson attempted to
assault him at that time.
      Although pro se briefs are afforded liberal construction, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in
order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
This court “will not raise and discuss legal issues that [the appellant] has failed
to assert.” Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987). The failure by Fuentes to address the district court’s time bar
ruling in his opening brief “is the same as if he had not appealed that judgment.”
Id. He likewise abandons any challenge to the district court’s determination
that no damages resulted from the August 2008 appointment. See id. While
Fuentes does address the district court’s time bar ruling to some extent in his
reply brief, “[a]rguments raised for the first time in a reply brief, even by pro se
litigants such as [Fuentes], are waived.” United States v. Jackson, 426 F.3d 301,
304 n.2 (5th Cir. 2005).
      AFFIRMED.




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