# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-40198

____________ Tony Epps, Plaintiff—Appellant ,

versus

University of Texas Medica l Branch at Galveston; Texas Department of Criminal Justice - Institutional Division; Unknown Drug Company; David Callender, President, UTMB ; Raymund S. Greenberg, Executive V.C. Health Affairs, UTMB ; Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division ; Gilead Sciences, Incorporated; Doctor Melvin Wright; Doctor Maria E. Berger; Doctor Julius Danzinger; Doctor R. G. Peil, Defendants—Appellees

.

______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:20-CV-407

______________________________ Before Smith, Southwick, and Wilson, Circuit Judges

. Per Curiam: *

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED December 7, 2023 Lyle W. Cayce Clerk Case: 23-40198 Document: 00516994147 Page: 1 Date Filed: 12/07/2023No. 23-40198

2 Tony Epps, Texas prisoner # 450 886, asserted in an amended 42 U.S.C. § 1983 complaint that Dr. Melvin Wright, Dr. Maria E. Berger, Dr. Julius Danzinger, and Dr. R. G. Peil, in conjunction with Gilead Sciences, Inc. (Gilead), administered medication wi th serious negative side effects to him and other inmates. 1 The district court dism issed Epps’s complaint for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Epps has now filed a motion for authorization to proceed in form a pauperis (IFP) on appeal, which constitutes a challenge to the district court’s certification that any appeal would not be taken in good faith becaus e Epps will not present a nonfrivolous appellate issue. See Baugh v. Taylor , 117 F.3d 197, 202 (5 th Cir. 1997). Epps does not mention Gilead, Dr. Danzinger, or Dr. Peil in his brief before this court or challenge the distri ct court’s reasons for dismissing his claims against the defendants for failure to state a claim upon which relief may be granted. Thus, the claims against these defe ndants are deemed abandoned. See Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987). With respect to Dr. Wright and Dr. Berger, Epps makes the conclusional assertion that they prescribed the “c rippling drugs.” Epps, however, does not provide sufficient facts surroundi ng the personal involvement of these defendants; nor does he meaningfu lly brief a substantive argument challenging the district court’s dete rmination that his claims of medical malpractice are not cogniz able in a § 1983 action . Thus, Epps’s claims

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1 UTMB, Texas Department of Criminal Justice-Institutional Division, Unknown Drug Company, David Callender, Raymund S. Greenberg, and Bobby Lumpkin were dismissed by the district court without pr ejudice pursuant to Federal Rule of Civil Procedure 41(a). This decision by the district cour t is not at issue in the instant appeal. Case: 23-40198 Document: 00516994147 Page: 2 Date Filed: 12/07/2023No. 23-40198

3 against these defendants ar e also deemed abandoned. See Coleman v. Lincoln Par. Det. Ctr. , 858 F.3d 307, 309 (5th Cir. 2017); Brinkmann , 813 F.2d at 748. The appeal is without arguable merit and is thus frivolous. See Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983). Epps’s motion to proceed IFP on appeal is DENIED , and the appeal is DISMISSED

. See 5th Cir. R

. 42.2. The dismissal as frivolous of this appeal counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on other gr ounds by Coleman v. Tollefson , 575 U.S. 532, 537 (2015). In addition, the district co urt’s dismissal of his original complaint for failure to state a claim upon which relief maybe granted also counts as a strike. See § 1915(g); Adepegba , 103 F.3d at 388. Epps is WARNED that if he accumulates three strikes, he will no longer be allowed to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). Case: 23-40198 Document: 00516994147 Page: 3 Date Filed: 12/07/2023