Bagley v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-20160
Conference Calendar

JOHN THOMAS BAGLEY,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, Director,
Texas Department of Criminal Justice
Institutional Division,

Defendant-Appellee.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-697
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December 9, 1997
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

John Thomas Bagley, Texas prisoner # 652853, appeals the

dismissal of his civil rights complaint as frivolous. Bagley

does not suggest that the district court erred by construing his

complaint as naming Texas Department of Criminal Justice (TDCJ)

Director Gary Johnson as the sole defendant. Thus, to the extent

that his complaint alleged claims against any other defendant,

Bagley has abandoned those claims. Yohey v. Collins, 985 F.2d

*
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that this opinion should not be published and is not precedent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.
 No. 97-20160
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222, 223-24 (5th Cir. 1993); FED. R. APP. P. 28(a)(6).

Bagley does not allege any personal action by TDCJ Director

Johnson. Therefore the dismissal of the complaint was within the

discretion of the district court. Williams v. Luna, 909 F.2d

121, 123 (5th Cir. 1990); 28 U.S.C. § 1915(e)(2)(B)(i); Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

The appeal is frivolous, being without arguable merit, and

it is therefore DISMISSED. Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983). 5TH CIR. R. 42.2. The district court’s and this

court’s dismissals as frivolous count as two “strikes” under the

Prison Litigation Reform Act, 28 U.S.C. § 1915(g).

DISMISSED.