### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40919 Summary Calendar

ANTONIO M. FUENTES, SR., Plaintiff-Appellant

v. JIM BJORNSON, Defendant-Appellee

A ppeal from the United States District Court for the Eastern District of Texas USDC No. 6:10-CV-478

Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM: * Antonio M. Fuentes, S r., Texas prisoner # 1020350, appeals t he summary dismissal of his 42 U.S.C. § 1983 suit against p hysical therapi s t J i m Bj ornson f o r d a m a g e s a l l e g e d l y r e s u l t i n g from ill-fitting m edical footwear. The magistrate judge recommended granting summary judgment in favor of Bjornson based in part upon a d e t e r m i n ation that Fuentes’s claims a rising before July 6, 2008,

were b arred by the statute of limitations. With respect to the remaining claim-- that Bjornson ins t ructed h is assistant not to use a measuring tool t o measure U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40919 Document: 00512235190 Page: 1 Date Filed: 05/08/2013No. 12-40919

Fuentes’s foot during an August 2008 a ppo i ntment--the magistrate judge determined that it was meritless because there w ere no damages, as Fuentes admitted that the boots ordered during the a ppointment fit correctly. After a d e
novo review, the district court adopted the magistrate judge’s r e port and recommendation and granted the motion for summary judgment. Proceeding pro se, Fuentes does not addr ess t h e timeliness of his claims in his opening b rief. Nor does he dispute t h e d e termination that n o damages resulted from Bjornson’s actions during the August 2008 appointment. Instead, Fuentes a s serts generally that Bjornson was d eliberately indifferent to his serious medical needs because Bjornson knowingly failed to a d d r e s s h i s f ootwear issues for 19 months. Fuentes also discusses a lawsuit h e f i l e d against the medical clinic in the early 1990s and an allegation that Bjornson attempted to assault him at that time. Although pro se briefs are afforded liberal construction, see H aines v. Kerner , 4 04 U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to p reserve t hem. Yohey v. Collins , 985 F.2d 2 22, 2 24-25 ( 5th Cir. 1993). This court “will not raise and discuss legal issues t hat [ the appellant] has failed to assert.” Brinkmann v. Dallas County Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987). The f

ailure b y Fuentes to address the district court’s time bar ruling in his opening b rief “is the same as if he had not appealed that judgment.” Id. He l ikewise a bandons any cha l l e n ge t o the district court’s determination that n o damages resulted from the August 2 008 appoint m e n t

. See i d. While Fuentes does address the district court’s t ime bar ruli n g t o some extent in his reply brief, “[a]rguments raised for the first time in a reply brief, even by pro se litigants such as [Fuentes], are waived.” United States v. Jackson , 426 F.3d 301, 304 n.2 (5th Cir. 2005). AFFIRMED.

2 Case: 12-40919 Document: 00512235190 Page: 2 Date Filed: 05/08/2013