Thomas v. McAlpine

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-11099
Summary Calendar

LORENZO THOMAS,

Plaintiff-Appellant,

versus

JEAN L. MCALPINE, Correctional Officer IV, in her individual
capacity; JOSEPH A. FARRAR, Sergeant, in his individual and
official capacity; MARVIN R. CAIN, JR., Sergeant, in his
individual and official capacity,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:01-CV-86

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Lorenzo Allen Thomas, Texas inmate # 739840, appeals the

dismissal of his civil rights complaint, filed pursuant to

42 U.S.C. § 1983. The district court correctly dismissed Thomas’s

retaliation claim relative to the November 28, 2000, incident

because he failed to exhaust his administrative remedies. See

*
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this opinion should not be published and is not precedent except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.
42 U.S.C. § 1997e(a); Richardson v. Spurlock, 260 F.3d 495, 499

(5th Cir. 2001). Because Thomas is not entitled to equitable

tolling of 42 U.S.C. § 1997e(a)’s exhaustion requirement, he is not

entitled to a dismissal of the instant suit without prejudice so

that he can exhaust his administrative claims.

Thomas’s argument that he was deprived the opportunity to

object to a magistrate judge’s report and recommendation lacks

merit inasmuch as the district court was not required to assign

Thomas’s case to a magistrate judge. See 28 U.S.C. § 636.

The district court correctly dismissed as frivolous

Thomas’s claim that he was retaliated against on November 12, 2000,

because Thomas fails to show retaliatory motive when prison

officials placed him in his cell. See McDonald v. Steward, 132

F.3d 225, 231 (5th Cir. 1998). The district court also correctly

dismissed Thomas’s claim that he was retaliated against on

November 28, 2000, because he fails to show a retaliatory adverse

act stemming from that incident. See id.

This court need not reach whether Thomas’s damages claim

for emotional injury is barred under 42 U.S.C. § 1997e(e) because

Thomas has failed to state a claim for retaliation. See Oliver v.

Scott, 276 F.3d 736, 746 n.20 (5th Cir. 2000).

Thomas’s claims relative to the disciplinary meeting in

his cell following the November 12, 2000, incident are deemed

abandoned because he makes no argument on appeal relative to those

2
claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

Thomas’s argument about the extension of time in which he

had to file a brief are meritless inasmuch as the Clerk’s office

accepted his brief for filing.

This court affirmed the dismissal of a prior in forma

pauperis (IFP) civil rights suit filed by Thomas as frivolous.

Thomas is advised that the district court's dismissal of the

instant complaint for failure to state a claim and this court's

affirmance of that dismissal constitute a second strike for

purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d

383, 388 (5th Cir. 1996). Thomas is hereby WARNED that if he

accumulates three strikes he may not proceed IFP in any civil

action or appeal 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).

AFFIRMED; WARNED.