IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21098
Conference Calendar
SAMMIE LEE,
Plaintiff-Appellant,
versus
RODNEY L. COLEMAN; M.B. THALER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1079
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June 15, 2000
Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Sammie Lee, pro se Texas prisoner # 401975, appeals the
district court’s dismissal as frivolous and for failure to state
a claim of his 42 U.S.C. § 1983 complaint in which he alleged
that a prison guard verbally abused him, pushed him against a
wall, and choked him, causing physical and mental injuries. The
district court did not abuse its discretion in determining that
Lee’s claims are frivolous as the injuries he alleged are at most
de minimis. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). Therefore, he cannot maintain a claim for excessive force
*
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that this opinion should not be published and is not precedent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. 99-21098
-2-
under the Eighth Amendment nor can he maintain a claim for mental
or emotional injury. See id. at 193-94. To the extent Lee
asserts claims of verbal abuse, such claims are not cognizable
under § 1983. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th
Cir. 1993).
Lee raises additional arguments on appeal under the Fourth
and Fourteenth Amendments and the Texas Penal Code. These
arguments were not raised in the district court, and we decline
to address them on appeal. See Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993).
For the foregoing reasons, we dismiss Lee’s appeal as
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). The district court’s dismissal of Lee’s complaint and
this court’s dismissal of the appeal as frivolous count as two
“strikes” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Lee is CAUTIONED
that if he accumulates three “strikes” under § 1915(g), he will
not be able to 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 28
U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.