IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11290
Conference Calendar
KIERON DEREK PENIGAR,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:01-CV-88
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February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kieron Derek Penigar, Texas prisoner # 721657, appeals the
magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983
complaint. Penigar argues that he has been “involuntarily
exposed to hordes of pornographic material and immoral sexual
behavior” and that the policy of permitting inmates to receive
and possess this material places him at risk of being sexually
assaulted.
*
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that this opinion should not be published and is not precedent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. 01-11290
-2-
We review the magistrate judge’s dismissal for an abuse of
discretion. See Harper v. Showers, 174 F.3d 716, 718 (5th Cir.
1999). Penigar does not identify any constitutional right that
has been allegedly violated, cites no legal authority, and offers
only the conclusional and speculative assertion that he is at
greater risk because of the presence of the pornography.
Conclusional allegations are insufficient to state a claim under
42 U.S.C. § 1983. Baker v. Putnal, 75 F.3d 190, 195 (5th Cir.
1996). To the extent that Penigar is raising a failure-to-
protect claim, he has failed to show that Johnson was both aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists and that he drew the
inference. Farmer v. Brennan, 511 U.S. 825, 833, 837 (1994).
Penigar’s appeal is without arguable merit and, thus,
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it should be dismissed.
5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a
“strike” for purposes of 28 U.S.C. § 1915(g), as does the
magistrate judge’s dismissal of his complaint as frivolous. See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Penigar
is WARNED that if he accumulates three strikes, he may not
proceed in forma pauperis 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).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.