United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-40198 

____________ 

Tony Epps, 

Plaintiff—Appellant, 

versus

University of Texas Medical 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 

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No. 23-40198 

2 

Tony Epps, Texas prisoner # 450886, 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 with serious negative side effects to 

him and other inmates.1

 The district court dismissed 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 forma pauperis (IFP) on appeal, which 

constitutes a challenge to the district court’s certification that any appeal 

would not be taken in good faith because Epps will not present a nonfrivolous 

appellate issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 

 Epps does not mention Gilead, Dr. Danzinger, or Dr. Peil in his brief 

before this court or challenge the district 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 defendants 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 “crippling drugs.” Epps, however, does 

not provide sufficient facts surrounding the personal involvement of these 

defendants; nor does he meaningfully brief a substantive argument 

challenging the district court’s determination that his claims of medical 

malpractice are not cognizable in a § 1983 action. Thus, Epps’s claims 

_____________________ 

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 prejudice pursuant to Federal Rule of Civil 

Procedure 41(a). This decision by the district court is not at issue in the instant appeal. 

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No. 23-40198 

3 

against these defendants are 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 grounds by Coleman v. Tollefson, 575 U.S. 532, 

537 (2015). In addition, the district court’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). 

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