IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40617
Conference Calendar
JAMES E. LEE ET AL.,
Plaintiffs,
JAMES E. LEE,
Plaintiff-Appellant,
versus
KEITH PRICE, Head Warden; KENNETH WILLIAMS,
Ad/Seg Captain; THE DARRINGTON UNIT OF TEXAS;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
DAVID HATT, Captain,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-92-CV-275 c/w
USDC No. G-92-CV-291
- - - - - - - - - -
April 19, 1999
Before JONES, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
James E. Lee, Texas inmate # 355539, proceeding pro se and
in forma pauperis appeals the summary-judgment dismissal of his
civil rights lawsuit. Lee contends that the district court
abused its discretion by consolidating his complaint with the
civil rights complaint filed by another inmate. Lee contends
*
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that this opinion should not be published and is not precedent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. 98-40617
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that the district court erred by dismissing his complaint without
conducting a hearing pursuant to Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985).
Lee has failed to preserve any issues for appeal related to
the claims that he raised in the district court by failing to
challenge the district court’s reasons for dismissing his
complaint. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987)(when appellant fails to
identify any error in the district court's analysis, it is the
same as if the appellant had not appealed that judgment).
The district court did not abuse its discretion by
consolidating Lee’s complaint with another civil rights complaint
because the actions involved “common question[s] of law or fact.”
Fed. R. Civ. P. 42(a); Bottazzi v. Petroleum Helicopters, Inc.,
664 F.2d 49, 50 (5th Cir. 1981). The district court did not err
in dismissing Lee’s complaint following summary judgment without
conducting a Spears hearing. See Fed. R. Civ. P. 56.
Lee’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.
The dismissal of this appeal as frivolous counts as one
“strike” for purposes of 28 U.S.C. § 1915(g). We caution Lee
that once he accumulates three strikes, he may not 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.
No. 98-40617
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DISMISSED AS FRIVOLOUS; WARNING ISSUED.