United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 6, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11158
Summary Calendar
CONCHITA WASHINGTON,
Plaintiff-Appellant,
versus
LUCY MALLISHAM, Warden, Federal Medical Center-Carswell;
HARLEY LAPPIN, Director, Federal Bureau of Prisons; FEDERAL
BUREAU OF PRISONS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(4:03-CV-1227-A)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Conchita Washington, federal prisoner #
14826-039, appeals from the district court’s dismissal of her
civil-rights lawsuit, filed pursuant to 42 U.S.C. § 1983, for
failure to state a claim on which relief may be granted and as
frivolous. Washington argues that Program Statement 1351.05,
issued by the Federal Bureau of Prisons, violates the Federal
Register Act, the Administrative Procedures Act, the Equal Access
*
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this opinion should not be published and is not precedent except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.
to Justice Act, the Freedom of Information Act, and the Due Process
Clause. As her arguments fail to raise a cognizable issue under 42
U.S.C. § 1983, the dismissal of her instant complaint pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted was proper. See Black v. Warren, 134
F.3d 732, 733-34 (5th Cir. 1998).
Accordingly, the district court’s judgment is AFFIRMED. The
district court’s dismissal for failure to state a claim counts as
one strike for purposes of 28 U.S.C. § 1915(g), and our affirmance
of that dismissal as frivolous counts as a second strike. See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Washington
is warned that if she accumulates three strikes, she may not
proceed in forma pauperis in any civil action or appeal filed while
she is incarcerated or detained in any facility unless she is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
AFFIRMED; STRIKE WARNING ISSUED.
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