United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2003
____________________
Charles R. Fulbruge III
No. 03-10034 Clerk
Summary Calendar
____________________
BRUCE WAYNE WORTHY,
Plaintiff-Appellant,
versus
DONALD R. SCOGGIN, Attorney at Law,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:02-CV-2233-N)
_________________________________________________________________
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bruce Wayne Worthy, Texas prisoner #912272, appeals, pro se,
the dismissal of his 42 U.S.C. § 1983 civil rights action for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2),
because the defendant, Worthy’s trial attorney, was not a state
actor for purposes of § 1983. Apparently misunderstanding the
basis for the dismissal, Worthy contends only that he should have
been permitted to voluntarily dismiss his suit without prejudice,
allowing him to refile after he is able to meet the requirements of
*
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that this opinion should not be published and is not precedent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.
Heck v. Humphrey, 512 U.S. 477 (1994). He does not challenge the
district court’s ruling that he failed to state a claim for which
relief could be granted because Scoggin is not a state actor for
purposes of 42 U.S.C. § 1983. By failing to do so, Worthy has
waived the sole ground for appeal. See Yohey v. Collins, 985 F.2d,
222, 224-25 (5th Cir. 1993). The appeal is thus without arguable
merit and is dismissed as frivolous. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The district court’s dismissal of Worthy’s 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). Worthy 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 “under imminent danger of
serious physical injury”. 28 U.S.C. § 1915(g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED
2