* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 27, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30334

Summary Calendar

LUIS MANUEL ALVARADO-RIVERA,

Plaintiff-Appellant,

versus

UNITED STATES BUREAU OF PRISONS;

ROBERT KOSCO; RON MARTINEZ,

DefendantsAppellees.

------------------------------------------------------------- Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:04-CV-1002

-------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM: *

Luis Manuel Alvarado-Rivera (“Alvarado”), federal prisoner # 89512-079, appeals the

dismissal of his in forma pauperis (“IF P”) civil rights suit. He also moves for the appointment of

counsel. The district court determined pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) that the

suit was frivolous and failed to state a claim. Alvarado has failed t o brief his claims, raised in the-2-

district court, that the defendants retaliated against him for pursuing his administrative remedies and

that he was unable t o exhaust administrative remedies in connection with his medical condition.

Accordingly, those claims are abandoned. See Yo hey v. Collins , 985 F.2d 222, 224-25 (5th Cir.

1993).

Alvarado argues with respect to his denial of access to courts claim that the district court

erroneously determined that he failed to show an actual injury. Alvarado has not briefed the district

court’s alternate holding that Alvarado failed to show a denial of access to the courts because he was

provided by the prison with persons to assist him with his legal claims. Alvarado’s failure to identify

error in the district court’s alternate basis for rejecting his claim is the equivalent of not appealing the

judgment, and the issue is abandoned. B rinkmann v. Dallas County Deputy Sheriff Abner

, 813 F.2d

744, 748 (5th Cir. 1987); F ED

. R. A PP

. P. 28(a)(9).

Alvarado also argues that the district c o urt erroneously denied his motion for class action

certification. He attempts to incorporate by reference arguments made in objections in the district

court, which is an insufficient means of presenting issues for review on appeal. S ee Peel & Co., Inc.

v. The Rug Market , 238 F.3d 391, 398-99 (5th Cir. 2001); Yohey , 985 F.2d at 224-25.

Alvarado’s appeal is without arguable merit and is frivolous. S ee Howard v. King

, 707 F.2d

215, 219-20 (5th Cir. 1983). It is therefore DISMISSED. S ee 5 TH C IR

. R. 42.2. Alvarado’s motion

for the appointment o f co unsel is DENIED. Alvarado is CAUTIONED that the dismissal of this

appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g), as does the district court’s dismissal

of his complaint. See Adepegba v. Hammons

, 103 F.3d 383, 387-88 (5th Cir. 1996). Alvarado is

CAUTIONED that if he accumulates three strikes under 28 U.S.C. § 1915(g), he will not be able-3-

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 28 U.S.C. § 1915(g).

APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING ISSUED.