IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40751
Conference Calendar
DALE ALAN CURTIS,
Plaintiff-Appellant,
versus
TIMOTHY WEST, Senior Warden, Mark Stiles Unit;
EDDIE WILLIAMS, Assistant Warden, Mark Stiles Unit;
TOMMY BROWN, Correctional Officer III, Mark Stiles
Unit; JIMMY BINGHAM, Correctional Officer III, Mark
Stiles Unit; DAVID BRUNET, Correctional Officer III,
Mark Stiles Unit; MATTHEW ELLIS, Correctional Officer
III, Mark Stiles Unit; CLINT GILBERT, Correctional
Officer III, Mark Stiles Unit; MARK HANLEY, Sergeant,
Mark Stiles Unit; STEPHANIE LEJUNE, Correctional
Officer III, Mark Stiles Unit; THOMAS MCKEE, Lieutenant,
Mark Stiles Unit; TOBY POWELL, Correctional Officer III,
Mark Stiles Unit; RICKEY TARVER, Correctional Officer III,
Mark Stiles Unit; ANNA TOMBLIN, Sergeant, Mark Stiles Unit;
TAURA WARE, Correctional Officer III, Mark Stiles Unit,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:97-CV-579
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April 10, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Dale A. Curtis, Texas prisoner # 644162, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim and as frivolous pursuant to 28 U.S.C.
*
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that this opinion should not be published and is not precedent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. 00-40751
-2-
§ 1915. He argues that he was summarily disciplined by denying
him a meal for failing to groom or to wear proper shoes in
violation of the Due Process Clause and that the mental state of
the district court judge was inadequate because he was suffering
from cancer and died soon after issuing the instant judgment.
The district court shall dismiss a prisoner’s in forma
pauperis (IFP) civil rights complaint if the court determines
that the action is frivolous or fails to state a claim upon which
relief may be granted. Black v. Warren, 134 F.3d 732, 733 (5th
Cir. 1998); see U.S.C. § 1915(e)(2)(B)(i) & (ii), respectively.
Curtis’ allegations of missed meals and improper disciplinary
action fail to rise to the level of an Eighth Amendment violation
and do not implicate a liberty interest. Berry v. Brady, 192
F.3d 504, 507-08 (5th Cir. 1999). His appeal is without arguable
merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983). Because the appeal is frivolous, it is
DISMISSED. See 5TH CIR. R. 42.2. The dismissal of this appeal
and the dismissal for failure to state a claim by the district
court each count as a “strike” for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Curtis, therefore, has two “strikes” under 28 U.S.C.
§ 1915(g). We caution Curtis that once he accumulates three
strikes, 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 28
U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.