United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-10706
Conference Calendar
FREDERICK ASBERRY,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; CHAD E. MEACHAM; RENEE HARRIS;
BRYAN WALTERS; JOHN MCBRYDE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-283-Y
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Frederick Asberry, federal prisoner # 29141-077, was
convicted of conspiracy to distribute cocaine base and was
sentenced to life in prison. Asberry filed a complaint naming
the United States, a federal district court judge, two assistant
U.S. attorneys, and a private attorney as defendants to his
allegations that his conviction was invalid and that he had been
kidnaped and falsely imprisoned. Asberry sought damages in
excess of $100,000.
*
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this opinion should not be published and is not precedent except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. 04-10706
-2-
The district court allowed Asberry to proceed in forma
pauperis (IFP), construed the complaint seeking damages as a
civil rights action, and dismissed all of the claims under 28
U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B). Asberry
argues that his complaint was not a civil rights complaint but
was a motion under FED. R. CIV. P. 60(b) challenging his criminal
conviction. This argument is meritless. Asberry has not
addressed any of the district court findings or conclusions
supporting the dismissal of his claims. As Asberry has failed to
address the relevant issues on appeal, he has waived them. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
The appeal of the district court’s dismissal of Asberry’s
civil action lacks arguable merit and is DISMISSED as frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2.
Asberry is cautioned that the district court's dismissal of
his complaint and this court's dismissal of his appeal count as
two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). If Asberry accrues three
strikes, he will not be able to proceed IFP 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; SANCTIONS WARNING ISSUED.