UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20851
DORRANCE F. MATTHEWS,
Plaintiff-Appellant,
versus
VICTOR GRAHAM, Sheriff; JOAN SANDERS, Chief Deputy;
BOB TAYLOR, Jail Administrator; LARRY MCDUGLE, Lieutenant;
K.C. CHITWOOD; DODDIE, Sergeant; SERGEANT DUCHARME;
ROCKY CARREL; EDWARD MARQUEZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-99-CV-844)
October 11, 2000
Before BARKSDALE, and BENAVIDES, Circuit Judges, and VELA*,
District Judge.
PER CURIAM:**
Dorrance F. Matthews, pro se Texas prisoner #851799, appeals
the dismissal, as frivolous, of his 42 U.S.C. § 1983 action.
Matthews’ action arises out of: his alleged placement in
*
District Judge of the Southern District of Texas, sitting
by designation.
**
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that this opinion should not be published and is not precedent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.
administrative segregation in a county jail for three months due to
his HIV-positive status; and, following his release back into the
general jail population, his alleged verbal harassment by guards
and other inmates. He seeks monetary damages, as well as
injunctive relief in the form of jail staff training in dealing
with HIV-infected persons and jails providing 24-hour medical care
to inmates.
Matthews’ action was dismissed as frivolous on the grounds
that neither placement in administrative segregation nor verbal
harassment is sufficient to state a constitutional claim under §
1983.
Matthews’ claims were correctly dismissed as frivolous. See
Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (“administrative
segregation, without more, does not constitute a deprivation of a
constitutionally cognizable liberty interest” (emphasis added)),
cert. denied, 517 U.S. 1196 (1996); Moore v. Mabus, 976 F.2d 268,
271 (5th Cir. 1992) (“the identification and segregation of HIV-
positive prisoners obviously serves a legitimate penological
interest”); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.)
(custodial officer’s threatening language and gestures do not
amount to constitutional violations), cert. denied, 464 U.S. 998
(1983).
For the first time on appeal, Matthews raises claims under the
Americans with Disabilities Act, the Civil Rights of
2
Institutionalized Persons Act, the Privacy Act, and the Texas
Commission on Jail Standards. Because these claims were not
presented in his complaint, he may not raise them now. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999), cert. denied, 120 S. Ct. 982 (2000).
Matthews has failed to raise any legal points arguable on
their merits. Accordingly, his appeal is DISMISSED as frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citing
Anders v. California, 386 U.S. 738 (1967)).
The district court’s and our dismissals 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). Matthews is CAUTIONED that if he
accumulates three such “strikes” under § 1915(g), he will not be
able to proceed in forma pauperis 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; WARNING ISSUED
3