IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40598

Summary Calendar

WILBERT C. JOHNSON,

Plaintiff-Appellant

v.

JOHN RUPERT; MAJOR JODY C. HEFNER; DWAYNE E. DEWBERRY;

CHRISTOPHER A. HOLMAN; FRANCIS E. SWEENEY; G. LIVELY; RICK

THALER; BRAD LIVINGSTON,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:11-CV-446

Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Wilbert C. Johnson, Texas prisoner # 613845, appeals the dismissal of his

civil rights complaint as frivolous and for failure to state a claim, pursuant to 28

U.S.C. § 1915A(b)(1). We review such a dismissal de novo. Ruiz v. United

States, 160 F.3d 273, 275 (5th Cir. 1998). “In determining whether to grant a

motion to dismiss, the district court must not go outside the pleadings and must

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2013

Lyle W. Cayce

Clerk

* 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. 12-40598

accept all well-pleaded facts as true, viewing those facts most favorably to the

plaintiff.” Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003).

Johnson alleged that he was being routinely, unwillingly, and

unconstitutionally strip searched and required to “squat and cough” in the

presence of female officers when going to and from work at the Michael Unit

Packing Plant. The Fourth Amendment provides the proper framework in which

to analyze such a claim. Moore v. Carwell, 168 F.3d 234, 237 (5th Cir. 1999).

Johnson alleged sufficient facts that, if accepted as true, stated a Fourth

Amendment claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Moore, 168 F.3d at 237; Hutchins v. McDaniels, 512 F.3d 193,

195-98 (5th Cir. 2007); Waddleton v. Jackson, 445 F. App’x 808, 809 (5th Cir.

2011). Instead of taking Johnson’s allegations as true, the district court looked

outside of the pleadings and improperly relied on the Assistant Warden’s

testimony at the Spears

1 hearing to conclude that the searches were justified. 

See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); see also Scanlan, 343

F.3d at 536; Eason v. Holt, 73 F.3d 600, 601 (5th Cir. 1996). Based on this, the

court concluded, prematurely at this point, that neither the squat and cough

policy nor the searches were unconstitutional. Accordingly, we vacate the

dismissal as frivolous and for failure to state a claim of Johnson’s Fourth

Amendment challenge to the strip searches and of his claim that the squat and

cough policy was unconstitutional and vacate the dismissals of Warden Rupert,

Major Hefner, Lt. Holman, and Sgt. Sweeney and remand the case for further

proceedings.

Johnson does not challenge the dismissal of the defendants who were in

the chain of command and denied his grievance. Although he asserts claims

related to searches conducted after the Spears hearing and the dismissal of his

complaint, he does not challenge the denial of his motion to amend to raise those

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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claims. Although pro se briefs are afforded liberal construction, Haines v.

Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments to

preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). When an

appellant fails to make or brief any arguments challenging the basis for the

district court’s decisions, he abandons any arguments regarding that ruling. See

Yohey, 985 F.2d at 224-25; Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987). Accordingly, the judgment is affirmed as to

the dismissal of Brad Livingston, Rick Thaler, Warden Dewberry, and Ginger

Lively and as to the denial of the motion to amend.

Additionally, Johnson contends that he alleged violations of the Fifth and

Fourteenth Amendments, but he has not briefed any arguments or cited any

relevant cases in support of this contention. Accordingly, he has abandoned this

argument. See Yohey, 985 F.2d at 224-25; Brinkmann, 813 F.2d at 748.

Johnson’s motion for the appointment of appellate counsel is denied. See

Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

AFFIRMED IN PART, VACATED AND REMANDED IN PART; MOTION

DENIED.

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