IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41485

Summary Calendar

CHAVEZ D. PRICE,

Plaintiff-Appellant

v.

UP NUNALLY, Captain; UP BORDELON, Lieutenant; DARREN WALLACE; 

VIRGIL MCMULLEN; DIRECTOR TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE; LANCE KNOD,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:13-CV-677

Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Chavez Daniel Price, Texas prisoner # 821134, appeals the dismissal of 

his 42 U.S.C. § 1983 complaint for failure to state a claim. He also moves for 

leave to file supplemental briefing, for the appointment of counsel, and for an 

“emergency” declaratory judgment. The motions to file supplemental briefing 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 19, 2019

Lyle W. Cayce

Clerk

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are GRANTED. For the following reasons, we AFFIRM the district court’s 

dismissal for failure to state a claim.

In his § 1983 complaint, Price claimed that prison officials denied him a 

meal, placed him naked in a “stripped cell,” subjected him to “terroristic 

threats,” denied his access to the courts, unlawfully retaliated against him, 

used excessive force against him, threatened to sexually assault him, failed to 

protect him, failed to properly train staff, recklessly disregarded his safety, 

abused their authority, and publicly humiliated him. On appeal, Price renews 

his claims, argues that he is being truthful while state officials are lying,

requests monetary compensation, and, with the benefit of liberal construction, 

asserts that the district court prematurely dismissed his case for failure to 

state a claim and that he should been allowed to obtain discovery and proceed 

to the summary judgment stage.

We review the dismissal de novo, applying the same standard as that 

under Federal Rule of Civil Procedure 12(b)(6). See Samford v. Dretke, 562 

F.3d 674, 678 (5th Cir. 2009); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 

2005). A complaint fails to state a claim if it lacks “sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation and citation omitted). As 

to retaliation, Price failed to state a claim. Even with the benefit of liberal 

construction, Price’s generalized assertion of retaliation, which did not set 

forth a chronology of events from which a retaliatory motive may plausibly be 

inferred, was too conclusional. See Woods v. Smith, 60 F.3d 1161, 1166 (5th 

Cir. 1995); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (motion for 

summary judgment). At the most basic level, Price has not identified any 

protected conduct that prompted the allegedly retaliatory acts. 

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Regarding Price’s non-retaliation claims, including (1) the denial of a 

meal, (2) inadequate conditions in the stripped cell, (3) excessive force, (4) 

threats of assault and other harm, and (5) supervisory liability, the district 

court correctly accepted Price’s allegations as true, yet determined nonetheless 

that they did not suffice to state a claim of a constitutional violation under 

§ 1983. As to Price’s argument that the district court ignored evidence he 

submitted after filing his complaint, a consideration of such documents falls 

outside the inquiry of whether his complaint fails to state a claim. See Walch 

v. Adjutant Gen.’s Dep’t of Texas, 533 F.3d 289, 293 (5th Cir. 2008). To the 

extent that Price otherwise attempts to challenge the district court’s dismissal 

of his non-retaliation claims for failure to state a claim, he has not adequately 

briefed any such challenge. Even though a pro se litigant benefits from liberal 

construction, he still must adequately brief his arguments. See Yohey v. 

Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). When an appellant fails to 

identify any error in the district court’s analysis, it is the same as if the 

appellant had not appealed that issue. Brinkmann v. Dallas Cty. Deputy 

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Even liberally construed, 

aside from Price’s arguments that the district court (1) failed to accept his 

allegations as true and (2) ignored evidence he submitted, Price has not 

adequately briefed any challenge to the district court’s dismissal of his nonretaliation claims, See Yohey, 985 F.2d at 224–25; Brinkmann, 813 F.2d at 748.

The motions for appointment of counsel and for an “emergency” 

declaratory judgment are DENIED.

Additionally, we note Price’s litigious history, including his numerous 

lawsuits related to his incarceration. Cf. Moody v. Miller, 864 F.2d 1178, 1179 

n.1 (5th Cir. 1989). Our affirmance and the district court’s underlying 

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dismissal count as one strike under 28 U.S.C. § 1915(g).1 See § 1915(g); 

Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996). Price is 

WARNED that if he accumulates three strikes, he will not be allowed to 

proceed in forma pauperis in any civil action or appeal unless he is under 

imminent danger of serious physical injury. See § 1915(g).

 

1 Even though the district court’s dismissal in one of Price’s prior lawsuits, TXSD 3:12-

cv-00312, cited § 1915(e)(2)(B) in its dismissal order, its ruling was centered on Price’s failure 

to exhaust. Because it is not clear that the district court dismissed that prior action entirely 

on grounds that the lawsuit was frivolous or malicious, that prior dismissal does not count 

as a strike. See Brown v. Megg, 857 F.3d 287, 290 (5th Cir. 2017).

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