IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20399
Conference Calendar
JAMES MCQUEEN BYRD,
Plaintiff-Appellant,
versus
CARL CLEMENTS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-3669
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February 11, 1998
Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
James McQueen Byrd, # 414415, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i). Byrd’s motion for default
judgment is DENIED. Byrd argues that defendant Carl Clements
used excessive force and that the beating was cruel and unusual
punishment, but he makes no argument regarding the district
court’s holding that Clements was not a state actor.
*
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that this opinion should not be published and is not precedent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. 97-20399
-2-
We have reviewed the record and the district court's opinion
and find no reversible error. See Byrd v. Clements, No. H-96-
3669 (S.D. Tex. Apr. 15, 1997). We further hold that Byrd’s
appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal
is frivolous, it is DISMISSED. See 5th Cir. R. 42.2. We caution
Byrd that any additional frivolous appeals filed by him or on his
behalf will invite the imposition of sanctions. To avoid
sanctions, Byrd is further cautioned to review any pending
appeals to ensure that they do not raise arguments that are
frivolous.
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.