UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20163
Summary Calendar
IVO NABELEK,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director, Texas Department of Criminal
Justice; GARY JOHNSON, Director, Texas Department of
Criminal Justice; JAMES ZELLER, Senior Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CV-3396)
July 30, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis (IFP), Ivo Nabelek,
Texas prisoner # 669748, appeals the dismissal as frivolous,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), of his civil rights
complaint brought pursuant to 42 U.S.C. § 1983.
The district court did not abuse its discretion by dismissing
as frivolous Nabelek’s involuntary-servitude claim and related ex
post facto challenge. See Ali v. Johnson, No. 00-10777, 2001 WL __
(5th Cir. 11 July 2001); see also Lynce v. Mathis, 519 U.S. 433,
*
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this opinion should not be published and is not precedent except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.
441 (1997). The district court’s failure to specifically address
Nabelek’s passing reference to a cruel-and-unusual-punishment
aspect of his involuntary-servitude claim is harmless, as prison
work assignments alone do not violate the Eighth Amendment. See
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Finally,
the district court did not err by denying Nabelek’s motion for a
preliminary injunction and his request that payment of the
appellate filing fee be deferred until after this court addressed
the merits of his appeal. See Lakedreams v. Taylor, 932 F.2d 1103,
1107 (5th Cir. 1991); 28 U.S.C. § 1915(b)(1).
Having considered these and the numerous related issues
raised, we conclude there is no reversible error.
The district court’s dismissal counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Nabelek is WARNED that if he accumulates three
strikes, he may not proceed IFP in any civil action or appeal while
he is incarcerated of detained in any facility unless he is in
imminent danger of serious physical injury. See 28 U.S.C. §
1915(g).
AFFIRMED; SANCTIONS WARNING ISSUED
2