     Case: 10-30121     Document: 00511182380          Page: 1    Date Filed: 07/22/2010




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

                                                 FILED
                                                                            July 22, 2010
                                     No. 10-30121
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHN DOOLITTLE,

                                                   Plaintiff-Appellant

v.

SHERMIEKA JARVIS; UNKNOWN LANDRY, Lieutenant; JIMMY SMITH,
Warden; UNKNOWN SMITH, Captain; LINDA RAMSEY,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:09-CV-951


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        John Doolittle, Louisiana prisoner # 109680, moves this court to proceed
in forma pauperis (IFP) in this appeal from the dismissal of his civil rights
complaint under 42 U.S.C. § 1983. In his complaint, Doolittle asserted claims
based on, inter alia, the service of tainted prison food and the denial of
prescription medication for high blood pressure.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 10-30121

      The district court dismissed Doolittle’s complaint as frivolous.           It
determined, relying on George v. King, 837 F.2d 705, 707 (5th Cir. 1988), that
a single incident of unintended food poisoning was not a constitutional violation.
The district court also determined that Doolittle had not alleged that he suffered
a physical injury as a result of the denial of his blood pressure pills. The district
court denied Doolittle leave to proceed IFP on appeal, certifying that the appeal
was not taken in good faith.      Doolittle’s IFP motion is a challenge to that
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Doolittle contends that the district court has not made findings as to
whether he was served tainted food and whether there was an interference with
his prescribed medication. To the extent that Doolittle is arguing that the
district court erred by not making factual findings regarding the defendants’
alleged actions in interfering with his medication and serving tainted food, he
fails to show that he has a nonfrivolous issue for appeal.           See Denton v.
Hernandez, 504 U.S. 25, 32 (1992).
      Doolittle does not address the district court’s determination that he had
not alleged a physical injury from the denial of his prescription medication. See
42 U.S.C. § 1997e(e). When an appellant fails to identify any error in the district
court’s analysis, it is the same as if the appellant had not appealed that issue.
Brinkmann v. Dallas County Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Although pro se briefs are afforded liberal construction, Haines v. Kerner, 404
U.S. 519, 520 (1972), arguments must be briefed in order to be preserved. Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1983). Doolittle has abandoned any
challenge to the district court’s dismissal of his claim regarding the denial of his
prescription medication by failing to brief the issue. See id.
      As to his claim regarding the service of tainted food, Doolittle reasserts his
contention that the defendants acted deliberately in serving the food. “[A] single
incident of unintended food poisoning, whether suffered by one or many
prisoners at an institution, does not constitute a violation of the constitutional

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                                 No. 10-30121

rights of the affected prisoners.”    George, 837 F.2d at 707.      To establish a
constitutional violation on a claim of deliberate indifference, a prisoner must
establish not only that the defendants acted in an objectively unreasonable
manner, but also that they “intended the consequence of those actions.” Wagner
v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000).
      In relying on the authority of George to dismiss Doolittle’s claim regarding
the service of tainted food, the district court implicitly determined that Doolittle
had merely alleged a single incident of unintended food poisoning. Doolittle has
not pointed to any allegation to the effect that prison officials intended to cause
harm, nor has he identified a factual allegation regarding any other incident of
food poisoning. He has not shown that he has a nonfrivolous issue for appeal in
connection with the dismissal of his claim regarding the service of tainted food.
See George, 837 F.2d at 707.
      Doolittle has not demonstrated that he will present a nonfrivolous issue
on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
his motion to proceed IFP is denied, and the appeal is dismissed as frivolous.
See Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2.
      Both the district court’s dismissal of the complaint and the dismissal of
this appeal as frivolous count as strikes under 28 U.S.C. § 1915(g). Doolittle is
cautioned that if he accumulates three strikes under § 1915(g), he will not be
able to 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. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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