United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-50663
Conference Calendar
ROBERT DAMIAN JOYCE,
Plaintiff-Appellant,
versus
TRAVIS COUNTY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-03-CV-262
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Robert Joyce, Texas prisoner # 1078414, appeals from the
district court’s dismissal without prejudice of his civil
rights complaint for failure to state a claim. See 28 U.S.C.
§ 1915(e)(2). Joyce alleged that the Travis County jail failed
to provide notice of his rights under the Americans With
Disabilities Act (ADA) on bulletin boards, in the handbook, and
throughout the jail facility. Joyce argues that the district
court erred in construing his complaint under 42 U.S.C. § 1983
*
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that this opinion should not be published and is not precedent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. 03-50663
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and in determining that he failed to state a claim for relief
under the ADA.
A dismissal for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii) is reviewed under the de novo standard of
review. See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.
1999). The district court did not err in treating his complaint
as a 42 U.S.C. § 1983 action because Joyce challenged the
conditions of his confinement. See Cook v. Texas Dep’t of
Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168
(5th Cir. 1994). Further, the district court did not err in
dismissing Joyce’s complaint because he failed to establish
the requirements for filing a cognizable claim under the ADA.
See Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 428
(5th Cir. 1997).
Because Joyce’s appeal is without arguable merit, it is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. This dismissal of this appeal
as frivolous counts as a “strike” under 28 U.S.C. § 1915(g), as
does the district court’s dismissal of Joyce’s complaint for
failure to state a claim. See Adepegba v. Hammons, 103 F.3d 383,
385-88 (5th Cir. 1996). Joyce is warned that if he accumulates
three strikes, he will not be able to proceed in forma pauperis
(IFP) in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
No. 03-50663
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imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.