IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10865
Summary Calendar
JIMMY ROY DAVIDSON,
Plaintiff-Appellant,
v.
OSCAR STRAIN, ET AL.,
Defendants,
OSCAR STRAIN; RONALD D. DREWRY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:95-CV-144-BA)
_________________________________________________________________
June 12, 1997
Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Jimmy Roy Davidson (# 612588) has appealed the district
court’s dismissal of his claims against the warden and another
official of his state prison unit, whom he sued in their official
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
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capacity. He requested monetary damages for having been required
to serve part of his sentence to cell, property, and commissary
restriction although his disciplinary conviction was set aside
during that time.
Davidson is not entitled to relief on grounds that these are
state-law negligence claims sustainable under supplemental
jurisdiction. They are barred by Eleventh Amendment immunity,
which the state did not waive by agreeing to a consent decree in
another case. See Green v. McKaskle, 788 F. 2d 1116, 1123 (5th
Cir. 1986)(no waiver); Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 121 (1984)(no pendent jurisdiction). Davidson’s
claims also are not actionable under 42 U.S.C. § 1983. See Luken
v. Scott, 71 F.3d 192, 193-94 (5th Cir. 1995), cert. denied, 116
S. Ct. 1690 (1996).
This court affirmed the dismissal of Davidson's similar
claims against other defendants, based on the same disciplinary
conviction. Davidson v. Strain, No. 96-10352 (5th Cir. Nov. 21,
1996)(unpublished). In light of that opinion, Davidson's present
appeal is frivolous as a matter of law. Because this appeal is
frivolous, it is DISMISSED. See 5th Cir. R. 42.2.
We caution Davidson that any additional frivolous appeals
filed by him will invite the imposition of sanctions. To avoid
sanctions Davidson is further cautioned to review any pending
appeals to ensure that they do not raise arguments that are
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frivolous.
IT IS FURTHER ORDERED that Davidson’s motion to strike the
appellees’ brief is DENIED.
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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