United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003
Charles R. Fulbruge III
Clerk
No. 03-20307
Conference Calendar
BRUCE WILLIS,
Plaintiff-Appellant,
versus
CONSTRUCTION CO.; CONSTRUCTION PARENT COMPANY;
CHEMICAL COMPANY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-4943
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bruce Lee Willis, Texas prisoner # 717354, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim. Willis argues that the district court
considered matters outside of the pleadings in determining that
his complaint failed to state a claim and that the court abused
its discretion by rejecting his motion for reconsideration,
wherein he alleged that the defendants were “probably” state
*
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that this opinion should not be published and is not precedent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. 03-20307
-2-
actors.
Contrary to Willis’s assertion, there is no evidence in the
record that the district court considered matters outside of the
pleadings in determining that his complaint failed to state a
claim. All of the factual information set forth in the district
court’s order dismissing the case came from Willis’s complaint.
Willis’s complaint does not provide any information
concerning the identity of the defendants or their relationship
to the state. Accordingly, the district court did not err in
dismissing his complaint for failure to state a 42 U.S.C. § 1983
claim. Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir.
1995); 42 U.S.C. § 1983.
To the extent that Willis challenges the denial of his
FED. R. CIV. P. 59(e) motion, his argument is likewise without
merit. Even if the district court were to consider the
allegations contained in his Rule 59(e) motion concerning the
defendants’ status as state actors, Willis has failed to state a
claim under 42 U.S.C. § 1983. Willis’s allegation that the
defendants are “probably” state actors is conclusional and
speculative. A district court is not required to accept a
plaintiff’s conclusional allegations as true. Fernandez-Montes
v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993).
Accordingly, the district court did not abuse its discretion in
denying Willis’s Rule 59(e) motion.
No. 03-20307
-3-
The instant appeal is without arguable merit and is
therefore 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 Willis’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). Willis has accumulated at least one
previous strike. See Willis v. Bates, No. 02-20532 (5th Cir.
Oct. 29, 2002)(unpublished). Because Willis has now accumulated
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).
In his appellate brief, Willis incorporates requests for
an evidentiary hearing on remand, appointment of counsel, and
discovery. In light of the disposition of this case, his motions
are DENIED. Willis also requests permission to supplement his
appellate brief; however, the cases he relies upon are
inapposite. Consequently, his motion is DENIED.
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED; ALL OUTSTANDING
MOTIONS DENIED.