     Case: 14-40805       Document: 00513106419         Page: 1     Date Filed: 07/07/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40805
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              July 7, 2015
JERRY J. ANDERSON,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellant

v.

WILLIAM STEPHENS, Director TDCJ-CID; WARDEN LONNY JOHNSON;
JOHN DOE UNKNOWN, Correctional Officer; CURTIS TRIBBLE; ROBERT
H. KANE, JR.; CARRIE HUCKLEBRIDGE; DR. ABBAS KHASDEL; DR.
MOISES C. GONZALEZ,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CV-34


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Jerry J. Anderson, Texas prisoner # 1764608, challenges the dismissal
of his pro se and in forma pauperis 42 U.S.C. § 1983 action as frivolous and for
failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(1). In his amended complaint, Anderson raised Eighth Amendment


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-40805

claims against defendants, arising from: injuries he sustained in a traffic
accident while being transported in a prison bus without seat belts; and, the
allegedly deficient medical treatment he subsequently received.
       Review of the dismissal of Anderson’s amended complaint pursuant to
§ 1915(e)(2)(B) is for abuse of discretion; for § 1915A(b)(1), de novo. E.g., Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per curiam). When a district court
refers to both statutes in dismissing a claim, as it did here, review is de novo.
Id.
       Anderson agreed to proceed before a magistrate judge. He does not
challenge the magistrate judge’s dismissal of his claims for damages against
defendants in their official capacities, or his claims against defendants
Stephens and Johnson; therefore, they are waived. See Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (failure to
identify error in the lower court’s analysis is the same as failing to appeal);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (holding that even pro se
litigants must brief arguments to preserve them).
       Moreover, Anderson’s amended complaint does not allege that John Doe
Unknown, the driver of the bus, had the knowledge of a substantial risk that
is required to state an Eighth Amendment claim. See Rogers v. Boatright, 709
F.3d 403, 409 (5th Cir. 2013) (discussing what constitutes knowledge of a
substantial risk).     Nor does the amended complaint allege the remaining
defendants “refused to treat him, ignored his complaints, intentionally treated
him incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs”. Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (internal quotation marks omitted).
       Therefore, Anderson’s challenge on the merits to the dismissal of his
amended complaint fails.



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                                    No. 14-40805

      In addition, Anderson challenges not being permitted to file a first
amended complaint. (He was permitted to file an amended complaint and
received a Spears hearing.) A plaintiff should be given an opportunity to
amend his complaint before it is dismissed for failure to state a claim, e.g.,
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam). As noted,
Anderson was allowed to amend his complaint once. The magistrate judge did
not abuse her discretion by denying him leave to amend a second time. See
Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005)
(discussing factors to consider).
      Anderson’s challenge is without arguable merit and is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir.
R. 42.2. The dismissal of this appeal as frivolous, and the magistrate judge’s
dismissal (as frivolous and for failure to state a claim), each count as a strike
for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Anderson is cautioned that, once he accumulates three strikes,
he may not proceed in forma pauperis in any civil action or appeal filed while
he is incarcerated or detained unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
      DISMISSED.




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