United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-20703
Conference Calendar
ROBERT M. FENLON,
Plaintiff-Appellant,
versus
ADAM MOSKOWITZ; BRIAN D. COYNE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-4270
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Fenlon, Texas prisoner No. 01015511, seeks leave to
proceed in forma pauperis (“IFP”) on appeal from the dismissal of
his civil rights complaint, and he has filed an “Extraordinary
Writ,” seeking to supplement the record with the original
transcripts and records from his state court criminal trial.
Fenlon’s request to supplement the record is DENIED.
Fenlon’s complaint alleged that his appointed trial
attorneys conspired with the trial judge and the prosecutor 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that this opinion should not be published and is not precedent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. 02-20703
-2-
fabricate evidence against Fenlon. The district court dismissed
the complaint as frivolous because it determined that Fenlon had
failed to establish that his attorneys were state actors for
purposes of 42 U.S.C. § 1983. The court denied Fenlon’s motion
to amend his complaint to add ninety-eight new defendants as
violative of FED. R. CIV. P. 20. The court denied Fenlon
permission to appeal IFP and certified that the appeal was not
taken in good faith. By moving for IFP, Fenlon is challenging
the district court’s certification. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
We reject Fenlon’s suggestion that this court lacks
appellate jurisdiction because the district court has not ruled
on two pending motions. We find no error in the district court’s
dismissal as frivolous of Fenlon’s claims against his trial
attorneys. Fenlon’s conclusional allegations of a conspiracy are
not actionable under 28 U.S.C. § 1983. See Hobbs v. Hawkins, 968
F.2d 471, 479-80 (5th Cir. 1992); Babb v. Dorman, 33 F.3d 472,
476 (5th Cir. 1994). We do not address the district court’s
denial of Fenlon’s motion to join additional defendants because
Fenlon has presented no argument challenging the district court’s
reasons for denying joinder. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
The district court’s dismissal of the complaint as frivolous
and this court’s dismissal of the appeal count as two “strikes”
No. 02-20703
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for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Fenlon is CAUTIONED that
if he accumulates one more “strike” under 28 U.S.C. § 1915(g), he
will not be able to proceed IFP 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).
IFP MOTION DENIED; MOTION TO SUPPLEMENT THE RECORD DENIED;
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.