     Case: 09-41241     Document: 00511173888          Page: 1    Date Filed: 07/15/2010




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

                                                 FILED
                                                                            July 15, 2010
                                     No. 09-41241
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MORRIS MILLER,

                                                   Plaintiff-Appellant

v.

LIEUTENANT HOLEMAN; WARDEN RUPERT,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:09-CV-328


Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Morris Miller, proceeding pro se, sued the defendants under 42 U.S.C.
§ 1983, alleging that he was wronged in an incident at the institution in which
he is incarcerated. The district court dismissed the action for failure to state a
claim and for frivolousness. Miller appeals.
        Miller contends on appeal that his constitutional right of protection from
cruel and unusual punishment was violated by the defendants. Given that
Miller fails to present any argument or cite any authority in support of his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41241    Document: 00511173888 Page: 2         Date Filed: 07/15/2010
                                 No. 09-41241

newly-raised issue of cruel and unusual punishment, however, he fails to
preserve it for review. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)
(“‘[A]rguments must be briefed to be preserved.’”). Additionally, Miller fails to
identify any error in the district court’s analysis; this is equivalent to a failure
to appeal the district court’s decision. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey, 985 F.2d at 224-25.
      Miller’s allegations are bald conclusions, and conclusory allegations do not
suffice to raise a nonfrivolous appellate issue under § 1983.         Mowbray v.
Cameron County, Tex., 274 F.3d 269, 278 (5th Cir. 2001). Because Miller’s
complaint “lacks an arguable basis in law or fact,” it is frivolous. Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001); see also 5 TH C IR. R. 42.2.
      The dismissal of Miller’s complaint as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g), and the dismissal of his appeal as frivolous
counts as a second strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Miller is warned 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).
      AFFIRMED.




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