IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20146
Conference Calendar
ROBERT GANDY,
Plaintiff-Appellant,
versus
LUPE SALINAS, Honorable; MICHAEL J. McCORMICK,
Honorable; CHUCK MILLER, Honorable; CHARLES CHUCK
CAMPBELL, Honorable; CHARLES F. BAIRD, Honorable;
MORRIS L. OVERSTREET, Honorable; BILL WHITE,
Honorable; LAWRENCE E. MEYERS, Honorable; FRANK
MALONEY, Honorable; SAM HOUSTON CLINTON,
Honorable; COURT OF CRIMINAL APPEALS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-3802
--------------------
June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Gandy, a Texas prisoner (# 565821), appeals the
district court’s sua sponte dismissal of his 42 U.S.C. § 1983
civil rights action under 28 U.S.C. § 1915A both “for failure to
state a claim upon which relief may be granted” and because he
had failed to pay a sanction that had been imposed upon him
*
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that this opinion should not be published and is not precedent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. 01-20146
-2-
several years earlier by the district court for the Western
District of Texas.
The district court did not abuse its discretion in
dismissing Gandy’s complaint based on his failure to comply with
another district court’s sanction order. See Balawajder v.
Scott, 160 F.3d 1066, 1067-68 (5th Cir. 1998) (upholding
dismissal of action by district court for Southern District of
Texas, based on a sanction order imposed by Western District of
Texas). The court also properly concluded that Gandy had failed
to state a claim upon which relief may be granted, as Gandy was
attempting only to obtain review of a state-court decision or to
attack his underlying conviction, neither of which is allowed
under § 1983. See District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 n.16 (1983); Preiser v. Rodriguez, 411
U.S. 475, 499-500 (1973).
Gandy’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, Gandy’s appeal is DISMISSED. See 5TH CIR. R.
42.2. The dismissal of his current complaint for failure to
state a claim and this court’s dismissal of this appeal as
frivolous both count as “strikes” pursuant to 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Gandy has had at least one prior complaint dismissed as
frivolous, which counts as a third strike. See id.; Gandy v.
Moya, No. W-95-CV-247 (W.D. Tex. May 5, 1996). Because Gandy has
accumulated three strikes, he may not proceed in forma pauperis
in any civil action or appeal filed while he is incarcerated or
No. 01-20146
-3-
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.