Nelson v. Director Texas Department of Criminal Justice

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 23, 2005 Charles R. Fulbruge III Clerk No. 04-40836 Summary Calendar CHARLES KENNETH NELSON, Plaintiff-Appellant, versus DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ROBERT HERRERA, Warden, Beto I Unit; SHERRI MILLIGAN, Correctional Officer IV, Beto I Unit; S. SCHUMACHER, Grievance Officer, Huntsville, Texas, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:04-CV-152-LED-HWM Before GARWOOD, STEWART and PRADO, Circuit Judges. PER CURIAM:* Charles Kenneth Nelson, Texas prisoner #503292, appeals the district court’s dismissal of his pro se, in forma pauperis (“IFP”), 42 U.S.C. § 1983 complaint as frivolous. Nelson’s complaint sought compensation for damage to his personal property. * 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court did not plainly err in dismissing Nelson’s deprivation-of-property claim as frivolous. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).** Texas has an adequate post-deprivation remedy for loss of prisoner property. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). Nelson’s appeal is without arguable merit and is 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 this appeal as frivolous and the district court’s dismissal as frivolous each count 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). Nelson received a previous strike as the result of the dismissal as frivolous of his appeal from the denial of FED. R. CIV. P. 60(b) relief in a 42 U.S.C. § 1983 complaint. See Nelson v. Soliz, No. 95-40714 (5th Cir. Dec. 20, 1995). Therefore, Nelson has accumulated at least three “strikes” under 28 U.S.C. § 1915(g), and he is BARRED from bringing any civil action or appeal IFP while he is incarcerated or detained in any facility unless he shows that he is under imminent danger of serious physical injury. APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IMPOSED. ** Nelson, though properly warned of the need to do so, failed to timely file objections to the Magistrate Judge’s report and recommendation. 2 3