IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21277
Conference Calendar
DARRYL GLEN WALLACE,
Plaintiff-Appellant,
versus
MERLYLIN OWENS, Lieutenant;
KEVIN BROWN, Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-4505
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Darryl Glen Wallace, Texas prisoner # 636243, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action for
failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). He argues that district court erred in
dismissing his action without giving him an opportunity to prove
his allegations by presenting witnesses. Wallace argues that
Lieutenant Merlylin Owens and Officer Kevin Brown threatened to
*
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that this opinion should not be published and is not precedent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. 01-21277
-2-
cause him bodily harm. Because Wallace failed to allege that he
suffered from any physical injury, de minimis or otherwise, the
district court did not err in dismissing his 42 U.S.C. § 1983
action for failure to state a claim. See 42 U.S.C. § 1997e(e);
Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997); Gomez
v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999); see also McFadden
v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)(“[M]ere threatening
language and gestures of a custodial office[r] do not, even if
true, amount to constitutional violations.”).
Wallace’s appeal is without arguable merit and, therefore,
is DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983); 5TH CIR. R. 42.2. Wallace is advised that the
district court’s dismissal of his civil action and the dismissal
of this appeal both count as “strikes” under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Wallace is also advised 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.