IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40658
Conference Calendar
ANTONIO M. LACY,
Plaintiff-Appellant,
versus
ARTHUR H. VELASQUEZ, Warden, Michael Unit;
MICHAEL L. STARKEY, Assistant Warden, Michael Unit;
JAMES YOUNG, Major, Michael Unit;
KEVIN G. MAYFIELD, Lieutenant, Michael Unit;
KENNETH PARTIN, Captain, Michael Unit;
PAMELA KIRKPATRICK; TAMMY HAM; CESAR SAENZ; K. WARD;
STACEY ARTHUR,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-426
--------------------
December 12, 2002
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Antonio M. Lacy, Texas prisoner # 594575, appeals the
dismissal as frivolous and for failure to state a claim of his
42 U.S.C. § 1983 lawsuit challenging his disciplinary conviction
for attempting to extort $8,000 from a fellow inmate by means of
an altered government document, an order purportedly granting a
*
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that this opinion should not be published and is not precedent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. 02-40658
-2-
writ of habeas corpus. On appeal, Lacy does not renew any of the
numerous claims he raised in his original complaint, and those
claims are therefore waived. Yohey v. Collins, 985 F.2d, 222,
224-25 (5th Cir. 1993).
Lacy argued below that $7,725, the amount equivalent to the
sum that the charging officer testified was going to be paid to
him in exchange for the false habeas order, was stolen from his
inmate trust account. The district court rejected this claim,
correctly determining that the record showed that Lacy’s account
never actually contained such a sum. Lacy now concedes that his
account never contained $7,725 but argues, for the first time on
appeal, that because there was never a deposit of $7,725, there
was insufficient evidence to convict him of extortion.
This court will not consider Lacy’s new theory of the case
as it was not first presented to the district court. See Shanks
v. AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999);
Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997). Even
if the court were to consider the argument, it is without merit.
The charging officer’s testimony implicating Lacy in the
extortion attempt, as well as the corroborating documentary
evidence, constitute “some” evidence of Lacy’s guilt sufficient
to support his disciplinary conviction. See Superintendent,
Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455-56
(1985).
No. 02-40658
-3-
Lacy’s appeal is wholly without merit, is frivolous, and is
therefore DISMISSED. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s
dismissal of his complaint counts as a “strike” for purposes of
28 U.S.C. § 1915(g), as does this court’s dismissal of the
instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). This court has also affirmed the dismissal, as
frivolous, of at least one of Lacy’s prior civil rights actions,
which counts as a third strike. See id.; Lacy v. Collins, No.
95-20033 (5th Cir. Aug. 8, 1995)(unpublished). Because Lacy has
accumulated at least 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). Lacy is further CAUTIONED to review any pending
appeals to ensure that they do not raise frivolous issues.
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.