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

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 s tate a c laim, p ursuant to 28 U.S.C. § 1915A(b)(1). We review s u ch a dismissal de novo. R uiz v . United States , 1 6 0 F

. 3 d 2 7 3 , 2 75 (5th Cir. 1998). “ In determining whether to grant a motion to dismiss, the district court must not go outside the pleadings and must U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 8, 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: 12-40598 Document: 00512400527 Page: 1 Date Filed: 10/08/2013No. 12-40598

accept all well-pleaded facts as true, viewing those facts most favorably to the plaintiff.” Scanlan v. Texas A&M University , 3 43 F.3d 533, 536 (5th Cir. 2003). Johnson alleged that he was being routinely, unwillingly, and unconstitutionally strip searched and req u ired to “squat and cough” in the
presence of female officers when going to and from work at th e M i c h a e l U nit Packing P lant. The Fourth Ame n d m e n t p r o vi des the proper framework in which to analyze such a claim. M oore v. Carwell , 168 F.3d 234, 237 (5th Cir. 1999). Johnson alleged sufficient facts that, if accepted as t rue, stated a Fourth Amendment claim that i s pla u sible on i ts face. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); Moore , 168 F.3d at 237; H utchins v. McDaniels , 512 F.3d 193, 195-98 (5th Cir. 2007); W a d d leton v. Jackson , 445 F. App’x 808, 809 (5th Cir. 2011). Instead of taking Johnson’s a l legations as true, the d i s trict c o u rt looked outside of the pleadings and improperly relied on the Assistant Warden’s testimony at t he Spears 1 h e aring to conclude that the searches were justified. See N orton v. Dimazana , 122 F.3d 286, 292 (5th Cir. 1997); see also Scanlan , 343 F.3d at 536; Eason v. Holt , 7 3 F.3d 600, 601 (5th Cir. 1996). Based on this, the court concluded, prematurely at this point, that neither t he squat and cough policy nor the searches w e r e u nconstitutional. Accordingly, we vacate the dismissal as frivolous and for failure to state a claim of Johnson’s Fourth Amendment challenge to t he strip searches and o f h is claim that the squat and cough policy was unconstitutional and vacate t he dismissals of Warden Rupert, Major Hefner, Lt. Holman, and Sgt. Sweeney a nd remand the c a s e f o r f urther proceedings. Johnson does not challenge t h e d ismissal of t he defendants who were in the chain of command and denied his grievance. Al t h o u g h h e 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 r aise those

1 Sp ea rs v . M

cCotter , 766 F

. 2d 179 ( 5th Cir. 1985)

.

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claims. Although pro s e briefs are a fforded liberal c onstruction, H aines v. Kerner , 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments to preserve the m . Y

o h e y v. Collins , 985 F .2d 222, 225 ( 5th Cir. 1 993). When an

a p p e l l a n t fails to make or brief any arguments challenging the b asis for t h e district c ourt’s decisions, he abandons a ny 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 i s affirmed as to the di s missal of B rad L ivingston, Rick T haler, Warden Dewberry, and Ginger Lively and as to the denial of the motion to amend. Additionally, J ohnson contends that he alleged vi olations of the Fifth and Fourteenth Amendments, b ut he has not briefed any arguments or c ited 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 m otion for the appointment of appellate counsel is d enied. See Schwander v. Blackburn , 750 F.2d 494, 502 (5th Cir. 1985). AFFIRMED IN PART, VACATED AN D R E MAN D E D I N PART; MOTION DENIED.

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