IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40043
Summary Calendar
EDDIE W. MARTIN, JR.,
Plaintiff-Appellant,
versus
ORLANDO PEREZ ET AL.,
Defendants,
ORLANDO PEREZ; WILLIAM A. BOOTHE; DOMINGO CARRILLO;
ERNEST J. DELBOSQUE; PABLO GARZA; LOUIS CARRILLO;
RAFAEL MENCHACCA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-312
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December 9, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Eddie W. Martin, Jr., Texas prisoner #651314, proceeding pro
se and in forma pauperis (IFP) appeals the district court’s
dismissal as frivolous of his 42 U.S.C. § 1983 complaint. Martin
contends that the defendants retaliated against him for
exercising his First Amendment right of access to the court.
*
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that this opinion should not be published and is not precedent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. 99-40043
-2-
Martin also contends that the magistrate judge was biased against
him and demonstrated personal knowledge of the facts of his case.
We review the district court’s dismissal of an IFP complaint
as frivolous for an abuse of discretion. Siglar v. Hightower,
112 F.3d 191, 193 (5th Cir. 1997). Martin’s conclusional
allegations, based on his personal belief, that the defendants
acted with retaliatory intent are insufficient to establish a
claim of retaliation. See Johnson v. Rodriguez, 110 F.3d 299,
310 (5th Cir.), cert. denied, 118 S. Ct. 559 (1997); Whittington
v. Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988). Martin’s
allegations of bias and improper personal knowledge of the facts
of his case are conclusional and unsupported. The district
court’s judgment is AFFIRMED.
This is not the first complaint or appeal filed by Martin
that has been dismissed as frivolous. A prisoner may not
bring a civil action or appeal a judgment in
a civil action or proceeding under this
section if the prisoner has, on 3 or more
prior occasions, while incarcerated or
detained in any facility, brought an action
or appeal in a court of the United States
that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
Martin now has three "strikes." See Adepegba v. Hammons,
103 F.3d 383, 386-88 (5th Cir. 1996). The district court’s
dismissal for failure to state a claim of a prior § 1983
complaint by Martin and this court’s dismissal as frivolous of
the appeal of that dismissal count as two strikes. See Martin v.
No. 99-40043
-3-
Martin, No. 97-10218 (5th Cir. Jan. 15, 1998)(loose papers, green
tab); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)(both
the dismissal in the district court as frivolous and the separate
dismissal of the appeal count as strikes). This court’s
affirmance of the district court’s dismissal as frivolous of
Martin’s complaint in the instant case is Martin’s third strike.
See Martin v. Perez, No. C-98-312 (S.D. Tex. Nov. 16, 1998);
Adepegba, 103 F.3d at 387(affirmance of district court’s
dismissal as frivolous counts as a single strike).
Except for cases involving an imminent danger of serious
physical injury, Martin is BARRED under § 1915(g) from proceeding
further under § 1915 while he is incarcerated.
AFFIRMED; 28 U.S.C. § 1915(g) BAR ORDERED.