United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 10, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40050
Summary Calendar
GERALD DUANE THOMAS,
Plaintiff-Appellant,
versus
ROBERT JENNINGS, Captain, Management
Training Corp., Diboll Unit,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-220
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges
PER CURIAM:*
Gerald Duane Thomas, Texas prisoner #793698, appeals the
district court’s dismissal with prejudice of his civil rights
complaint as frivolous under 28 U.S.C. § 1915. Thomas argues
that the district court erred in denying the discovery motions he
filed before the hearing held pursuant to Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985). The denial of these motions was not an
abuse of discretion. See McGuire v. Sigma Coatings, Inc., 48
*
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that this opinion should not be published and is not precedent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. 03-40050
-2-
F.3d 902, 906 (5th Cir. 1995); Mayo v. Tri-Bell Indus., Inc., 787
F.2d 1007, 1012 (5th Cir. 1986); Feist v. Jefferson County
Comm’rs Court, 778 F.2d 250, 252-53 (5th Cir. 1985). Thomas’
argument that the district court erred in denying the motions he
filed after the entry of the final judgment, namely a motion for
a judgment on the pleadings, a motion for summary judgment, and a
motion for discovery, is also without merit. See Winchester v.
United States Atty. for Southern Dist. of Tex., 68 F.3d 947, 948-
49 (5th Cir. 1995). We also reject Thomas’ argument that the
district court erroneously considered the testimony of Gary West
before the Spears hearing. We find no evidence in the record
that the district court considered testimony from this person.
We review a 28 U.S.C. § 1915(e)(2)(B)(i) dismissal of an in
forma pauperis (IFP) complaint as frivolous for an abuse of
discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). Thomas does not challenge the district court’s summary of
the evidence presented at the Spears hearing. Based upon this
evidence, the district court concluded that Captain Jennings did
not know Thomas faced a substantial risk of serious harm from his
cell mate. The district court’s dismissal of Thomas’s civil
rights complaint was not an abuse of discretion.
Thomas’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.
No. 03-40050
-3-
R. 42.2. The dismissal of this appeal as frivolous and the
district court’s dismissal of this lawsuit as frivolous
constitute two strikes for purposes of the 28 U.S.C. § 1915(g)
bar. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We
caution Thomas that once he accumulates three strikes, he may not
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).
DISMISSED AS FRIVOLOUS; WARNING ISSUED.