No. 97-20526
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20526
Conference Calendar
JAMES ELLIS, JR.,
Plaintiff-Appellant,
versus
R. THALER, Warden; WAYNE SCOTT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-485
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August 20, 1998
Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
James Ellis, Jr., Texas prisoner #661137, appeals from the
dismissal of his civil rights action as frivolous. Ellis
contends his placement in administrative segregation violated the
Due Process Clause. He argues that Texas prison regulations
created a liberty interest against placement in administrative
segregation and that failure to follow prison regulations is
itself a due process violation. Ellis contends that prison
officials were deliberately indifferent to his health and safety
by placing him in administrative segregation and by placing him
with an HIV-positive inmate. He argues that the district court
*
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that this opinion should not be published and is not precedent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. 97-20526
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should have required the warden to obtain his former cellmate’s
prison records to ascertain whether his cellmate was disposed to
violence, as Ellis alleges (for the first time on appeal) that he
was. Ellis contends that retaliation may be inferred from the
fact that he was placed in an unsafe situation after he filed a
grievance regarding his placement in administrative segregation
and requested the name of the person who had him placed in
administrative segregation. Ellis argues that the defendants
were personally involved in the actions underlying his complaint.
We have reviewed Ellis’s brief and the record, and we have
found no nonfrivolous issues. Accordingly, we dismiss Ellis’s
claims for essentially the reasons relied upon by the district
court. Ellis v. Thaler, No. H-96-485 (S.D. Tex. June 17, 1997).
Ellis’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). We
previously dismissed an appeal by Ellis as frivolous, following
the dismissal of his complaint as frivolous. Ellis v. Bozarth,
No. 98-50205 (5th Cir. Jun. 17, 1998)(unpublished). The district
court’s dismissal of the present case and our dismissal of the
appeal constitute strikes three and four against Ellis for
purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). Because Ellis has more than three
strikes, he may not bring a civil action or appeal as a prisoner
proceeding in forma pauperis unless he is under imminent danger
of serious physical injury. 28 U.S.C. § 1915(g).
APPEAL DISMISSED. 5TH CIR. R. 42.2. SANCTION IMPOSED UNDER
28 U.S.C. § 1915(g).