IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10488
Summary Calendar
STEVE DOUGLAS MCNEAL,
Plaintiff-Appellant,
versus
NFN NOCK, Sergeant; NFN BARNES,
Sergeant; NFN DUFFY, Officer;
ROBERT VINCENT MARTINEZ,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:01-CV-106-C)
_________________________________________________________________
October 2, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Steve Douglas McNeal, Texas prisoner # 1048066, appeals, pro
se, the dismissal as frivolous of his 42 U.S.C. § 1983 civil rights
complaint. We review such a § 1915 dismissal for abuse of
discretion. E.g., Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.
1997).
*
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that this opinion should not be published and is not precedent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.
McNeal contends: Defendants denied him access to the courts;
and Sergeant Nock engaged in the unauthorized practice of law. He
also asserts, for the first time on appeal, that he has been
discriminated against because of his indigency. Because this claim
was not presented to the district court, we will not address it.
See, e.g., Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount
Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). McNeal also
asserts, again for the first time on appeal, that he continues to
be denied access to legal materials, impeding his ability to fully
develop his claims. This claim is similarly barred. See id. Even
if we were to consider the claim, it fails for the reason that, as
McNeal acknowledges, he has been transferred from the Lubbock
County Jail; thus, the Lubbock County Jail officials, Defendants,
are not the proper defendants for any claim for continued denial of
access following his transfer out of their custody.
McNeal’s claim against Sergeant Nock for allegedly engaging in
the unauthorized practice of law fails because McNeal has not
demonstrated any resulting constitutional violation. See Johnson
v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.), cert
denied, 514 U.S. 1017 (1994)(“To plead a constitutional claim for
relief under § 1983, [a plaintiff must] allege a violation of a
right secured ... by the Constitution or laws of the United
States”).
His claim against his attorney, Martinez, for denial of access
to the courts likewise fails because, as the magistrate judge
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determined, Martinez, a private citizen, is not a requisite state
actor for § 1983 purposes. See Polk County v. Dodson, 454 U.S.
312, 318-19 (1981).
McNeal’s claim against the Lubbock County Jail officials for
denial of access to legal materials is similarly without merit
because, as McNeal conceded, he was represented by counsel, to whom
he had adequate access. See Tarter v. Hury, 646 F.2d 1010, 1014
(5th Cir. 1981).
McNeal now claims the magistrate judge erred in determining
that Martinez was not a state actor, based on McNeal’s assertion
that Martinez conspired with jail officials to deny him access to
the courts; he further contends the magistrate judge erred in
determining that access to Martinez was sufficient to satisfy
McNeal’s right of access to the courts. The true nature of his
claim, however, appears to be that Defendants conspired to have him
wrongfully convicted. In other words, McNeal seeks to recover
money damages for an allegedly illegal conviction; his claim is
barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
McNeal next contends that the magistrate judge erred by not
promptly conducting the Spears hearing and in failing to permit him
to amend his complaint “despite the 8 month delay” in holding the
Spears hearing. Contrary to McNeal’s assertion, there was only a
two-month delay in holding the hearing, with the delay being an
attempt to accommodate his transfer to a different prison. McNeal
conclusionally states that the delay permitted Defendants to harm
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him further by continuing to deny him access to legal materials;
but, as explained, any alleged denial of access post-transfer
cannot be attributed to Defendants. Moreover, McNeal has not
demonstrated any injury resulting from the delay or from the denial
of his motions to amend, because he has not specified how a more
prompt evidentiary hearing or an amendment to the complaint would
have cured the defects in his claims. Accordingly, any error in
postponing the hearing or in failing to allow him to amend was
harmless.
McNeal’s appeal is wholly without merit, is frivolous, and is
therefore DISMISSED. See 5TH CIR. R. 42.2. The magistrate judge’s
dismissal of his complaint counts as a “strike” for 28 U.S.C. §
1915(g) purposes, as does this dismissal of this appeal. See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). McNeal is
CAUTIONED that if 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 in imminent
danger of serious physical injury. See 28 U.S.C. § 1915(g).
DISMISSED; THREE-STRIKES WARNING ISSUED
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