1

See Spears v. McCotter, 766 F.2d 179 (5th Cir.1984). 

United States Court of Appeals,

Fifth Circuit.

No. 94-60667

Summary Calendar.

Robert L. GRANT, Plaintiff-Appellant,

v.

Margos A. CUELLAR, R.A. Love, and A. William, Defendants-Appellees.

July 27, 1995.

Appeal from the United States District Court For the Southern District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

Robert Grant, an inmate proceeding pro se and in forma pauperis, appealsthe district court's

dismissal, under 28 U.S.C. § 1915(d) (1988), of his civil rights suit against several prison officials.

We dismiss for want of prosecution.

Grant filed an excessive force claim under 42 U.S.C. § 1983 (1988) against several prison

officials, alleging that they had violated his First and Eighth Amendment rights. He alleged that a

prison official had struck him repeatedly with a metal bar and that two other officials had watched

without intervening. Grant had objected to the condition of a meal tray he had received, and he

claims that the prison official had physically assaulted and verbally abused him when he motioned to

summon a supervisor. At the time of this incident, Grant was assigned to a segregation cell for

having assaulted a prison official. After conducting a Spears hearing,1the district court dismissed

Grant's claims as frivolous. Grant filed a timely appeal.

Grant's appellate brief does little more than restate the relevant factual events leading to his

original complaint. Accordingly, the prison officials argue that we should dismiss Grant's appeal for
 

2Rule 28 requires an appellant's brief to contain, among other things, a statement of the issues

and an argument. Fed.R.App.P. 28(a). 

 

3Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (holding

pleadings filed by pro se parties to "less stringent standards than formal pleadings drafted by

lawyers" and allowing pro se petitioners to proceed when their briefs, "however inartfully

pleaded, are sufficient to call for the opportunity to offer supporting evidence"); accord Price v.

Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988); Abdul-Alim Amin v. Universal Life

Ins. Co., 706 F.2d 638, 640 n. 1 (5th Cir.1983). 

 

4Grant only states his factual allegations and that "Defendant's caused Plaintiff Robert L. Grant

to sustain injuries in violation his constitutional right." 

failure to comply with Rule 28(a) of the Federal Rules of Appellate Procedure.2 Although we

liberally construe briefs of pro se litigants and apply lessstringent standardsto parties proceeding pro

se than to parties represented by counsel,3pro se parties must still brief the issues and reasonably

comply with the standards of Rule 28. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994)

("[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate Procedure.");

Yohey v. Collins, 985 F.2d 222, 225 (5thCir.1993) (" "[A]rguments must be briefed to be preserved.'

" (quoting Price, 846 F.2d at 1028)).

The prison officials argue that Grant has abandoned his appeal by failing to brief any issues.

ThisCourt has considered a pro se appellant's brief despite itstechnicalnoncompliance with theRules

of Civil Procedure when it at least argued some error on the part of the district court. See, e.g.,

Wilkes, 20 F.3d at 653 (considering issue even after criticizing brief for failing to cite to the record

for argument that his sentence was improper because "the superseding information failed to specify

the type and quantity of drug he possessed"); Price, 846 F.2d at 1028 (addressing issue even though

the "only reference appellant makesto the district court's dismissal of hislawsuit isto assert that "this

action is not time barred' "); Amin, 706 F.2d at 640 n. 1 (considering brief because it "contains an

assertion of trial court error"). But see Yohey, 985 F.2d at 224 (holding that plaintiff had abandoned

issues because he merely "request[ed] ... the adoption of previously filed legal and factual arguments

in his objections to the magistrate judge's report and in various state court pleadings"). In this case,

Grant failsto meet even this minimalrequirement. Aside from the implication raised by its existence,

his brief does not argue that the district court erred in any way.4
 

5

See Wilkes, 20 F.3d at 653 (reviewing pro se prisoner's appeal after cautioning that appellant's

noncompliance with Local Rule 28.2.3, which provides that "[e]very assertion in the briefs

regarding matter in the record shall be supported by a reference to the page number of the original

record where the matter relied upon is to be found," and Fed.R.App.P. 28 may result in dismissal

of the appeal). 

 

6

In Price, this Court permitted a pro se plaintiff to proceed with a Title VII claim because it

was "unable to perceive any prejudice to appellee from appellant's deficient brief." Price, 846

F.2d at 1028; cf. FSLIC v. Haralson, 813 F.2d 370, 373 n. 3 (11th Cir.1987) (allowing pro se

plaintiff to proceed because opponent could not claim that "it was not aware of the issues in this

appeal or that it was hampered in its ability to respond"). 

 

7

"In all instances of failure to prosecute an appeal to hearing as required, the Court may take

such other action as it deems appropriate." 5th Cir. Local R. 42.3.3. "[W]hen appellant fails ... to

comply with the rules of the Court, the Clerk shall enter an order dismissing the appeal for want

of prosecution." 5th Cir. Local R. 42.3.2. 

This Court has discretion to consider a noncompliant brief,5and it has allowed pro se

plaintiffsto proceed when the plaintiff's noncompliance did not prejudice the opposing party. Price,

846 F.2d at 1028.6 Accordingly, we look to whether Grant's noncompliance with procedural rules

caused the prison officials harm or unfair surprise. See Price, 846 F.3d at 1028 (finding no prejudice

when opponent had addressed all issues).

 The district court dismissed Grant's complaint on the grounds that it was frivolous. A

complaint is frivolous if it lacks an arguable basis in either law or fact. Denton v. Hernandez, 504

U.S. 25, 31-33, 112 S.Ct. 1728, 1733-34, 118 L.Ed.2d 340 (1992). Because Grant does not state

whether the basis for his challenge to the district court's dismissal is legal, factual, or both, he forced

the prison officials to speculate as to the relevant issues when they prepared their own brief. They

assumed that Grant intended to argue that his complaint waslegally nonfrivolous, and they addressed

that question. However, the prison officials did not address the question of factual frivolousness, nor

did they address every issue relevant to an evaluation of legal frivolousness. Grant's failure to

articulate any appellate argument therefore deprived the prison officials of their opportunity to

addressfully all the issues and prejudiced their ability to prepare and present argumentsto this Court.

Consequently, we will not excuse his noncompliance with Rule 28.

For the foregoing reasons, we DISMISS Grant's appeal for want of prosecution.7