United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-51006
Conference Calendar
JUAN ARTURO MONTOYA,
Plaintiff-Appellant,
versus
TROY WILLIAMSON, Warden, Former Warden, F.C.I. La Tuna;
ROBERT M. TAPIA, Warden, F.C.I. La Tuna;
D. RAMEY, Correctional Officer, F.S.L. La Tuna;
F.C.I. LA TUNA SPECIAL HOUSING UNIT OFFICER/
MEDICAL STAFF, at both F.C.I. La Tuna and the F.S.L.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CV-54-PRM
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Juan Arturo Montoya, federal prisoner # 51939-019, appeals
the district court’s dismissal of his Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) action.
The district court dismissed the complaint as to defendants
Williamson, Tapia, and Ramey on the basis that there is no
respondeat superior doctrine in a Bivens action. Montoya has not
*
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that this opinion should not be published and is not precedent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. 03-51006
-2-
shown that the district court abused its discretion in dismissing
his complaint as to those defendants as frivolous. See Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). Montoya has not
briefed the issue whether the district court erred in dismissing
the complaint as to the remaining defendants for want of
prosecution and it is deemed abandoned. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
Montoya’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, the appeal is DISMISSED. 5TH CIR. R. 42.2.
The dismissal of this appeal counts as a “strike” for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). We caution Montoya that once he accumulates
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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.