IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11264
Summary Calendar
CARL J. NICHOLS,
Plaintiff-Appellant,
versus
JOSEPH K. PRICE, Warden; STEVEN N. RICH,
Assistant Warden; JAMES TURNER; LARRY J.
PATTISON, Sergeant; JOHN W. THOMAS,
Correctional Officer III; RICHARD A. DUFFY;
JIMMY D. BAGBY; TOMMY R. ROBERT; JOHN DOE,
#1; JOHN DOE, #2,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CV-173
--------------------
March 14, 2002
Before GARWOOD, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Carl J. Nichols, Texas prisoner #670714, appeals the
district court’s dismissal of his civil rights action as
frivolous under 28 U.S.C. § 1915(e).
The district court did not abuse its discretion in denying
Nichols’ claim that he was denied access to courts as Nichols
failed to show that the defendants’ actions prejudiced his
*
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that this opinion should not be published and is not precedent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. 01-11264
-2-
position in any legal proceeding. See Lewis v. Casey, 518 U.S.
343, 350-51 (1996). Nichols’ claims of retaliation for asking to
speak to a supervisor about a correctional officer’s conduct and
for exercising his right to access to the courts are frivolous as
Nichols failed to show that the correctional officers involved
had any retaliatory intent. See Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995).
Nichols’ claim that he was denied due process at his
disciplinary hearing because he was not allowed to call any
witnesses is likewise frivolous. Nichols may not recover damages
for an allegedly unconstitutional disciplinary proceeding unless
he establishes that the disciplinary proceeding has been
reversed, expunged, or declared invalid. See Edwards v. Balisok,
520 U.S. 641, 646-48 (1997). Nichols fails to make such a
showing.
Nichols’ 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 as frivolous and the district
court's dismissal of this lawsuit as frivolous constitute two
strikes for purposes of the 28 U.S.C. § 1915(g) bar. Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We caution Nichols
that once he accumulates three strikes, he may not proceed in
forma pauperis 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).
No. 01-11264
-3-
DISMISSED AS FRIVOLOUS; WARNING ISSUED.