No. 99-30613
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30613
Conference Calendar
JIMMY G. NIXON, SR.,
Plaintiff-Appellant,
versus
KATHLEEN HAWK-SAWYER; JANET RENO; MIKE FLAGOR;
CARL CESTERLINE; N. L. CONNER; JAMES SMITH;
DARBY, Guard; RANDY HENDERSON; JOHN DOE (1-100);
MICHAEL GINSTER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-2212
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April 14, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jimmy Nixon, federal prisoner # 12863-116, appeals the
district court’s dismissal of his Bivens** civil rights action as
frivolous. Nixon argues that he was unjustly sanctioned with 15
*
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that this opinion should not be published and is not precedent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.
**
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 99-30613
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days of phone and commissary restrictions for being found in a
prison dormitory off limits to Nixon, that a prison paralegal
failed to file Nixon’s grievances, that the prison never
addressed Nixon’s grievances, that the prison paralegal lied to
Nixon when the paralegal said that the incident report would be
taken off Nixon’s prison record, and that the paralegal’s
actions, as well as the actions of other defendants, constituted
retaliation and harassment.
We review the district court’s dismissal of Nixon’s
complaint as frivolous for an abuse of discretion. An in forma
pauperis complaint may be dismissed as frivolous if it lacks an
arguable basis in law or fact. See 28 U.S.C. § 1915(e)(2)(B)(i);
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). In order
to state a civil rights action under Bivens, the plaintiff must
show a constitutional violation. See Abate v. Southern Pacific
Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993).
Nixon has failed to show that any of his claims involved
constitutional issues and that the district court abused its
discretion by dismissing his complaint as frivolous.
Furthermore, Nixon’s appeal lacks arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). The appeal is therefore DISMISSED. 5TH CIR. R. 42.2. The
dismissal of this appeal as frivolous and the dismissal of his
district court suit as frivolous count as two strikes for
purposes of 28 U.S.C. § 1915(g). We caution Nixon that once he
accumulates three strikes, he may not proceed in forma pauperis
in any civil action or appeal filed while he is incarcerated or
No. 99-30613
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detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g). Nixon’s
motion for consolidation of cases is DENIED.
APPEAL DISMISSED AS FRIVOLOUS, MOTION DENIED, SANCTIONS
WARNING ISSUED.