IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11340
Conference Calendar
RICHARD GERMAN ROBINSON,
Plaintiff-Appellant,
versus
JAMIE BLOUNT, Correctional Officer II;
CORY CHANDLER, Correctional Officer III,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CV-134
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February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Richard German Robinson, Texas prisoner # 819174, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 civil
rights action as frivolous pursuant to 28 U.S.C. §§ 1915A and
1915(e)(2). He argues that Jamie Blount and Cory Chandler used
excessive force against him, hit him from behind, and pushed him
to the floor. He argues that he suffered mental, not physical,
injuries. Because he has not shown that he suffered more than a
de minimis injury, he has not established a 42 U.S.C. § 1983
*
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that this opinion should not be published and is not precedent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. 01-11340
-2-
claim for mental or emotional suffering. See Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Further, under 42
U.S.C. § 1997e(e), he may not recover damages for mental or
emotional injury without a prior showing of physical injury.
Therefore, he has not shown that the district court abused its
discretion in dismissing as frivolous his claim that Blount and
Chandler used excessive force. See Siglar, 112 F.3d at 193.
For the first time on appeal, Robinson argues that the
defendants conspired to cover up the alleged excessive use of
force. Robinson may not raise a new theory of recovery for the
first time on appeal. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 528 U.S. 1138
(2000).
Robinson argues that his due process rights were violated
because false evidence was presented during a disciplinary
proceeding and he was not allowed to call witnesses. Robinson
has not shown that the disciplinary hearing was reversed,
expunged, or otherwise declared invalid and, therefore, his claim
is barred by Edwards v. Balisok, 520 U.S. 641, 646-48 (1997).
Robinson has not shown that the district court abused its
discretion in dismissing as frivolous his claim challenging the
disciplinary proceeding. See Siglar, 112 F.3d at 193.
Robinson’s appeal is without arguable merit and, therefore,
it is DISMISSED as frivolous. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Robinson is advised
that the district court’s dismissal of this case and the
dismissal of this appeal both count as strikes for the purposes
No. 01-11340
-3-
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385 (5th Cir. 1996). Robinson is advised that if he accumulates
three strikes, he may not proceed in forma pauperis in any civil
action or appeal while he is incarcerated or detained in any
facility unless he is in imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.