     Case: 11-40859     Document: 00511840407         Page: 1     Date Filed: 05/01/2012




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

                                                                            FILED
                                                                            May 1, 2012
                                     No. 11-40859
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RALPH B. SMITH,

                                                  Plaintiff-Appellant

v.

WARDEN DAWN GROUNDS; JEFF CALFEE, also known as Unidentified
Calfee, also known as FNU Calfee; MAJOR RODGER MCDONALD;
LIEUTENANT MICHAEL BRANTLEY; SARGEANT MRS. MOORE; NURSE
CLAIRE RUSSELL; DR. REGINALDO STANLEY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:10-CV-237


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Ralph B. Smith, Texas prisoner # 855314, appeals the district court’s
dismissal of his civil action under 42 U.S.C. § 1983 and the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213, as frivolous and for failure to state
a claim upon which relief may be granted. Smith argues that the district court
violated his due process rights by ignoring evidence showing that he was entitled

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40859    Document: 00511840407      Page: 2   Date Filed: 05/01/2012

                                  No. 11-40859

to relief. He briefly argues the facts of his claims, and he states that the record
speaks for itself.
      The district court dismissed Smith’s complaint because it found that his
claims for monetary damages and declaratory relief were barred by the Eleventh
Amendment and his claim for injunctive relief was moot. By failing to discuss
or even mention the district court’s rationales for dismissing his complaint,
Smith has waived any challenge to the dismissal of his complaint.              See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Smith’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Because the appeal is frivolous, it is
dismissed. See 5TH CIR. R. 42.2. Smith’s motion for appointment of counsel is
denied. See Santana v. Chandler, 961 F.2d 514, 515-16 (5th Cir. 1992).
      Both this court’s dismissal of the instant appeal and the district court’s
dismissal of Smith’s complaint count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). During
the pendency of this appeal, this court imposed the § 1915(g) bar against Smith.
See Smith v. Hullum, 442 F. App’x 972, 972 (5th Cir. 2011).              Smith is
admonished that he may not proceed 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.” § 1915(g). Smith is also warned that filing
further frivolous matters will subject him to sanctions in addition to those that
are already in place. He is instructed to review any pending matters and move
to dismiss any that are frivolous.
      APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; 28 U.S.C. § 1915(g) BAR REMAINS IN EFFECT; SANCTION
WARNING ISSUED.




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