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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10946

Summary Calendar

ROBERT MARTINEZ,

Plaintiff - Appellant

v.

BUS DRIVER, Name Unknown, GEO Employee Lieutenant in Rank;

FEDERAL CORRECTIONAL OFFICER, Name Unknown, GEO Employee;

UNKNOWN WALKER, Correctional Officer, GEO Employee; WARDEN NFN

GOINGS, GEO; LAW LIBRARY SUPERVISOR, Name Unknown,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas 

USDC No. 4:08-CV-463

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Robert Martinez, Texas prisoner # 1188230, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 complaint. The district court dismissed

Martinez’s complaint for a number of reasons, one of which was his failure to

exhaust administrative remedies. Martinez’s appeal does not adequately

United States Court of Appeals

Fifth Circuit

F I L E D

September 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-10946

 Because of our disposition of this appeal, we need not address whether the alleged

1

acts are violations of Martinez’s constitutional rights. We in no way condone the type of

conduct alleged to have occurred on this bus ride if, indeed, Martinez’s allegations are true.

2

challenge the district court’s dismissal of his suit for failure to exhaust. For this

reason, the district court’s dismissal is AFFIRMED.

I. BACKGROUND

Robert Martinez filed this pro se suit under 42 U.S.C. § 1983 complaining

about various prison conditions to which he was subjected. Martinez alleged

that during a fifteen and a half hour bus ride he was denied adequate bathroom

facilities in violation of his constitutional rights. Martinez also complained that 1

his rights were violated when prison officials allowed a bus driver with a poor

driving history to drive the bus, resulting in an accident in which Martinez

contends he was injured. Additionally, Martinez alleges that the law library in

his prison is inadequate. The district court reviewed Martinez’s complaint and

then dismissed all of his claims for three reasons: (1) failure to exhaust

administrative remedies; (2) failure to state a claim upon which relief can be

granted; and (3) being frivolous.

II. STANDARD OF REVIEW

This court reviews de novo a district court’s dismissal of a prisoner’s

complaint for failure to exhaust and for failure to state a claim upon which relief

can be granted. Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). This court

reviews under an abuse of discretion standard the district court’s finding that

Martinez’s claims were frivolous. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999). 

III. DISCUSSION

Martinez’s appeal raises two issues for the court. First, the court must

determine whether the district court’s dismissal was proper. Second, if the
No. 08-10946

 While unpublished opinions are not precedent, we cite this case as illustrative of how 2

we have addressed this situation in the past.

3

district court’s dismissal was proper, the court must then determine whether

Martinez’s appeal is frivolous. We will address each issue in turn. 

A. The District Court’s Dismissal

The district court dismissed Martinez’s suit because he admitted on the

face of his complaint that he failed to exhaust his administrative remedies before

bringing suit. Martinez brought this suit by using a form complaint issued by

the district court. Question III of the form complaint asked Martinez whether

he had exhausted his administrative remedies before bringing suit; Martinez

answered, “No.” The district court relied upon Martinez’s answer to dismiss his

suit under 42 U.S.C. § 1997e(a), which requires all prisoners to exhaust their

administrative remedies before bringing suit with respect to their prison

conditions.

In Jones v. Bock, the Supreme Court held that prisoners, under 42 U.S.C.

§ 1997e(a), “are not required to specially plead or demonstrate exhaustion in

their complaints.” 549 U.S. 199, 216 (2007). In Carbe v. Lappin, this court

stated that a “district court cannot by local rule sidestep Jones by requiring

prisoners to affirmatively plead exhaustion.” 492 F.3d at 328. Carbe’s

prohibition has been interpreted by this court to encompass questions in “form

complaints” issued by district courts that are designed to elicit “information

about [a prisoner’s] exhaustion of administrative remedies.” Torns v. Miss.

Dep’t of Corr., No. 07-60256, 301 F. App’x 386, 389 (5th Cir.

2008)(unpublished)(stating a court cannot consider information regarding

exhaustion that is elicited by the court’s own form complaint). We need not 2

decide today how far Carbe’s prohibition extends, because Martinez failed to

raise this legal argument in his brief. 
No. 08-10946

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“‘Although we liberally construe the briefs of pro se appellants, we also

require that arguments must be briefed to be preserved.’” Yohey v. Collins, 985

F.2d 222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip. Corp., 846 F.2d

1026, 1028 (5th Cir. 1988)). “We will not raise and discuss legal issues that [an

appellant] has failed to assert.” Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987). In his brief, Martinez does not contest

the district court’s use of his answer to Question III to dismiss his complaint for

failure to exhaust. The only argument in Martinez’s brief that can be construed

to challenge the district court’s exhaustion finding is his reference to letters he

sent to various prison officials and agencies about his complaints. Martinez’s

reference to such letters, even liberally construed, does not give rise to the

argument that the district court erroneously considered his answer to Question

III. Martinez’s failure to raise this legal argument means that he has

abandoned it, and we will not consider it. Hughes v. Johnson, 191 F.3d 607, 612-

13 (5th Cir. 1999).

Since Martinez has failed to adequately challenge the district court’s

conclusion that he did not exhaust his administrative remedies, the district

court’s dismissal must be affirmed because Martinez’s answer to Question III

“makes clear” on the “the [face of his] complaint” that he “failed to exhaust” his

administrative remedies before bringing suit. Carbe, 492 F.3d at 328; see

Ferrington v. La. Dep’t of Corr., 315 F.3d 529, 532 (5th Cir. 2002) (affirming a

district court’s dismissal of a complaint under 42 U.S.C. § 1997e(a) for failure to

exhaust administrative remedies). 

B. The Frivolousness of Martinez’s Appeal

Because of the potential for a filing bar under 28 U.S.C. §1915, the final

question before the court is whether Martinez’s appeal is frivolous. In this

circuit, “[a]n appeal is frivolous if the result is obvious or the arguments of error

are wholly without merit.” Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.
No. 08-10946

 Martinez’s appeal might have had some merit if he had raised and adequately briefed 3

a defense to his failure to exhaust. See Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th

Cir. 2001) (stating 42 U.S.C. § 1997e’s “exhaustion requirement is not jurisdictional and may

be subject to certain defenses such as waiver, estoppel or equitable tolling”). Martinez,

however, failed to do so, and because of his failure, he abandoned any such defenses. See

Yohey, 985 F.2d at 225 (stating that “arguments must be briefed to be preserved”).

 Martinez received his first strike from this court in Martinez v. Tex. Dep’t Corr., 235 4

F. App’x 335, 335 (5th Cir. 2007). Martinez received his second and third strike in this case,

one for the original dismissal and one for the frivolous appeal. See 28 U.S.C. § 1915(g) (stating

that a strike is to be given when a court dismisses a suit for failure to “state a claim upon

which relief may be granted”); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)

(counting as two strikes this court’s affirmation of a district court’s dismissal and this court’s

dismissal of the subsequent appeal as frivolous). 

5

1988); see also Ozee v. Am. Council on Gift Annuities, Inc., 110 F.3d 1082, 1097

(5th Cir. 1997) (“In this circuit, a frivolous appeal is either one that pursues legal

points not arguable on the merits or one in which the result is obvious.”), vacated

and remanded on other grounds, 522 U.S. 1011 (1997). 

This court has stated that an appeal is “frivolous [when] . . . the result is

obvious from the [district court’s correct,] comprehensive and decisive exposition

of the law.” Coghlan, 852 F.2d at 810. The district court’s opinion below

correctly analyzed the relevant statute and case law regarding exhaustion, and

its exposition of the law made it clear that Martinez’s suit had to be dismissed

because of his failure to exhaust. Because the district court was clear on this

point of law, it should have been obvious to Martinez that this court would also

dismiss his suit because of his failure to exhaust if he did not set forth any

cogent reason that the district court’s determination was incorrect. Since

Martinez’s appeal was “taken ‘in the face of clear, unambiguous, dispositive

holdings of this’” court, his appeal must be deemed frivolous. Coghlan, 852 F.2d 3

at 811.

Because Martinez’s appeal is frivolous, it counts as Martinez’s third strike

under 28 U.S.C. § 1915(g). Because Martinez has collected three strikes under 4

28 U.S.C. § 1915(g), he is now barred from proceeding in forma pauperis in any
No. 08-10946

6

civil action or appeal filed while he is incarcerated or detained in any facility

unless he is under imminent danger of serious physical injury. 

IV. CONCLUSION 

For the reasons stated herein, the district court’s dismissal is

AFFIRMED, and a 28 U.S.C. § 1915(g) BAR IS IMPOSED.