United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-20722
Conference Calendar
JOHNNY VALCHAR,
Plaintiff-Appellant,
versus
BOARD OF PARDONS & PAROLES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-1897
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Johnny Valchar, Texas prisoner # 744014, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint.
Valchar contends that the file maintained by the Texas Board of
Pardons and Paroles (“the Board”) contains erroneous information
regarding his gang affiliation. The district court dismissed
this claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
Valchar has not shown that the district court abused its
discretion in dismissing as frivolous his claim concerning the
*
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this opinion should not be published and is not precedent except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. 04-20722
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presence of false information in his parole file. See Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997); Johnson v.
Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
This court will not consider Valchar’s argument that the
Board failed to comply with provisions of the Texas Open Records
Act requiring that information be divulged to an inmate or his
attorney because Valchar did not raise this claim in the district
court. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999).
Valchar does not address the dismissal of the remaining
claims raised in the district court. Accordingly, these claims
have been abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
Valchar’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.
The dismissal of Valchar’s appeal by this court counts as
a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Valchar has accumulated at
least two additional strikes based on the dismissal of a previous
civil rights complaint and appeal as frivolous. See Valchar v.
Swart, No. 99-10186 (5th Cir. Aug. 24, 1999) (unpublished).
Valchar has now accumulated at least three strikes for purposes
of 28 U.S.C. § 1915(g). Accordingly, Valchar is now BARRED from
No. 04-20722
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proceeding 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 AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED.