Thomas vs. McAlpine, (5th Cir. 2004)

Docket Number: 03-11099

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED May 26, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 03-11099 Summary Calendar LORENZO THOMAS, Plaintiff-Appellant, versus JEAN L. MCALPINE, Correctional Officer IV, in her individual capacity; JOSEPH A. FARRAR, Sergeant, in his individual and official capacity; MARVIN R. CAIN, JR., Sergeant, in his individual and official capacity, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:01-CV-86 Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM: * Lorenzo Allen Thomas, Texas inmate # 739840, appeals the dismissal of his civil rights complaint, filed pursuant to 42 U.S.C. § 1983. The district court correctly dismissed Thomas§ 1997e(a); Richardson v. Spurlock , 260 F.3d 495, 499 (5th Cir. 2001). Because Thomas is not entitled to equitable tolling of 42 U.S.C. § 1997e(a)Â’s exhaustion requirement, he is not entitled to a dismissal of the instant suit without prejudice so that he can exhaust his administrative claims.

Thomas§ 636.

The district court correctly dismissed as frivolous ThomasÂ’s claim that he was retaliated against on November 12, 2000, because Thomas fails to show retali atory motive when prison officials placed him in his cell. S ee McDonald v. Steward , 132 F.3d 225, 231 (5th Cir. 1998). The district court also correctly dismissed ThomasÂ’s claim that he wa s retaliated against on November 28, 2000, because he fails to show a retaliatory adverse act stemming from that incident. See id .

This court need not reach whether Thomas§ 1997e(e) because Thomas has failed to state a claim for retaliation. S ee Oliver v. Scott , 276 F.3d 736, 746 n.20 (5th Cir. 2000).

ThomasÂ’s claims relative to the disciplinary meeting in his cell following the November 12, 2000, i ncident are deemed abandoned because he makes no argument on appeal relative to those claims. S ee Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993).

ThomasÂ’s argument about the extension of time in which he had to file a brief are meritless inasmuch as the ClerkÂ’s office accepted his brief for filing.

Thi s court affirmed the dismissal of a prior i n forma pauperis (IFP) civil rights suit filed by Thomas as frivolous.

T homas is advised that the district court's dismissal of the instant complaint for failure to state a claim and this court's affirmance of that dismissal constitute a second strike for purposes of 28 U.S.C. § 1915(g). A depegba v. Hammons , 103 F. 3 d 383, 388 (5th Cir. 1996). Thomas is hereby WARNED that if he accumulates three strikes he may not proceed IFP in any civil action or appeal while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).

AFFIRMED; WARNED .