United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2004
Charles R. Fulbruge III
Clerk
No. 04-40632
Summary Calendar
GERALD CAIN,
Plaintiff-Appellant,
versus
AMBRIZ, Captain; GRIEVANCE STAFF, MCCONNELL UNIT,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-96
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gerald Cain, Texas inmate # 812200, appeals the dismissal
of his civil rights action filed under 42 U.S.C. § 1983. Cain
challenges the magistrate judge’s determination that he failed to
state a claim of either retaliation or excessive use of force
against defendant Capt. Ambriz. He also challenges the district
court’s dismissal without prejudice of his retaliation claims
*
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opinion should not be published and is not precedent except under the limited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.
against members of the McConnell Unit grievance staff for failure
to state a claim.
On appeal, Cain concedes that he defied repeated requests
from Capt. Ambriz that Cain step back into his cell. Cain remained
in his doorway and Capt. Ambriz was unable to close Cain’s cell
door. The action taken by Capt. Ambriz, using his open hand to
push Cain’s face and force him into his cell, was not objectively
unreasonable given Cain’s admitted refusal to comply with Capt.
Ambriz’ requests. We therefore conclude that Cain’s allegations
did not state a claim for excessive use of force against Capt.
Ambriz. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Williams
v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
The magistrate judge rejected Cain’s claim that
Capt. Ambriz’s act of striking Cain was a retaliatory act.
At his Spears1 hearing, Cain stated that he did not believe that
Capt. Ambriz struck him in retaliation for filing grievances
against Capt. Ambriz. Instead, Cain stated that he believed that
Capt. Ambriz simply did not like inmates. Because Cain’s allega-
tions did not show that Capt. Ambriz intended to retaliate against
Cain for exercising a constitutional right, his complaint failed to
state a claim of retaliation against Capt. Ambriz. See McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998); Woods v. Smith, 60 F.3d
1161, 1164 (5th Cir. 1995).
1
The record on appeal does not contain any tapes or transcripts of the
hearing.
2
The magistrate judge dismissed without prejudice Cain’s
claims of retaliation against members of the prison unit grievance
staff because Cain was unable to identify any individual members of
the grievance staff and because his allegations of motive were
based solely on his personal beliefs. On appeal, Cain does not
argue that the magistrate judge’s dismissal of his claims was
improper given the information available in the district court.
Instead, Cain has named several members of the grievance staff that
he considers to be defendants in the case and he has made specific
factual allegations relating to those newly-named individuals. The
Federal Rules of Appellate Procedure do not permit Cain to amend
his original complaint in this appeal. If Cain wishes to make
specific allegations of retaliation against individual members of
the McConnell Unit grievance staff, he should re-file his claims.
See Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993)
(applicable statute of limitations in Texas is two years).
The dismissal of Cain’s complaint for failure to state a
claim is AFFIRMED. The district court’s dismissal of Cain’s
complaint counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Cain is WARNED that if he accumulates three strikes, he may not
proceed in forma pauperis 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).
3
AFFIRMED; SANCTION WARNING ISSUED.
4