     Case: 15-10410      Document: 00513370808         Page: 1    Date Filed: 02/05/2016




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

                                      No. 15-10410
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                            February 5, 2016

LENROY MCLEAN,                                                               Lyle W. Cayce
                                                                                  Clerk
                                                 Plaintiff-Appellant

v.

MYRON BATTS, Warden; LOUIS WILLIAMS, III, Assistant Warden; FNU
BARTLETT, Captain; FNU SOLES, Lieutenant; MELISSA LLOYD, Nurse;
FNU BELTRAN, Dentist; JORGE PARTIDA, Clinical Director; D. MOLINA,
Counselor; FNU YARBAR, Case Manager; J. A. KELLER, Regional Director;
HARRELL WATTS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:14-CV-107


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Lenroy McLean, federal prisoner # 61524-054, filed a complaint in which
he asserted claims under the Federal Tort Claims Act (FTCA) and Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). McLean raised claims of deliberate indifference to his serious medical


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10410

needs, retaliation, sexual misconduct, confiscation of property, and due process
violations arising out of a disciplinary proceeding. The magistrate judge (MJ)
dismissed the claims as frivolous and denied McLean’s motion to proceed in
forma pauperis (IFP) on appeal, certifying that the appeal was not taken in
good faith. By moving for IFP status in this court, McLean is challenging the
MJ’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      McLean’s argument that the district court lacked authority to transfer
his case to the MJ to conduct an evidentiary hearing is without merit. See § 28
U.S.C. § 636(b)(1)(B). McLean’s argument that the MJ did not have authority
to enter a final order in his case because he did not consent to proceed before
the MJ is likewise without merit. In particular, after McLean was admonished
regarding his rights to proceed before the MJ, McLean consented in writing to
proceed before the MJ, and he again consented at the evidentiary hearing. In
addition, by participating in the hearing, McLean implied his consent to
proceed before the MJ. See Roell v. Withrow, 538 U.S. 580, 586 (2003); see also
Donaldson v. Ducote, 373 F.3d 622, 625 & n.1 (5th Cir. 2004).
      McLean raises no argument that the MJ erred in dismissing his FTCA
and Bivens claims. Although pro se briefs are afforded liberal construction,
even pro se litigants must brief arguments in order to preserve them. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). As McLean fails to identify any
error in the MJ’s analysis as to these claims, it is the same as if he had not
appealed these issues. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
      Accordingly, McLean’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is
DENIED, and the appeal is DISMISSED. See Baugh, 117 F.3d at 202; 5TH
CIR. R. 42.2.



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                                  No. 15-10410

      The district court’s dismissal of the complaint as frivolous and our
dismissal of the appeal as frivolous count as “strikes” for purposes of the “three
strikes” bar under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). McLean is WARNED that if he accumulates at
least three strikes under § 1915(g), he will not be able to proceed IFP in any
civil action or appeal filed in a court of the United States 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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