IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20325
Conference Calendar
LUIS SANTOS LAGAITE, JR.,
Plaintiff-Appellant,
versus
DALE MYERS; JENIFFER HUDGGINS;
SAM PRESTWOOD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-2710
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December 14, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Luis S. Lagaite, Jr., Texas prisoner # 762508, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
suit following entry of summary judgment for defendant Myers.
Lagaite argues that the court erred in dismissing his claim that
the defendant denied him access to the courts by interfering with
his legal mail. Lagaite also argues that the court should have
appointed counsel to represent him, erred in denying discovery to
him, and erred in denying his motion for default judgment.
*
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this opinion should not be published and is not precedent except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. 99-20325
-2-
Lagaite’s right of access to the courts is limited to his
right to challenge his conviction or the conditions of his
confinement. See Lewis v. Casey, 518 U.S. 343, 355 (1996). The
legal mail at issue in this case is unrelated to these rights.
Thus, the district court did not err in granting summary judgment
to defendant and dismissing Lagaite’s complaint.
Lagaite did not request that the district court appoint
counsel for him, nor did Lagaite move the district court to
continue Myers’s summary-judgment motion pending discovery, and
thus Lagaite did not preserve these issues for appeal. See Burch
v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997). The
district court did not abuse its discretion in denying Lagaite’s
motions to subpoena witnesses for deposition because Lagaite did
not support the need for such depositions. See Feist v.
Jefferson County Comm’r Court, 778 F.2d 250, 252 (5th Cir. 1985).
The district court did not abuse its discretion in denying
Lagaite’s motion for default judgment because defendant Myers had
filed an answer to the complaint. See Mason v. Lister, 562 F.2d
343, 345 (5th Cir. 1977).
Lagaite’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because his appeal is frivolous, it is DISMISSED. See
5th Cir. R. 42.2.
The dismissal of this appeal as frivolous counts as a
“strike” under 28 U.S.C. § 1915(g). Lagaite already had at least
two “strikes” in Lagaite v. Hale, No. H-97-2377 (S.D. Tex.
November 25, 1997) and Lagaite v. Hale, No. 97-21034 (5th Cir.
No. 99-20325
-3-
October 22, 1998). Lagaite has now accumulated at least three
“strikes” under § 1915(g). 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. See § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.