United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 5, 2006
Charles R. Fulbruge III
Clerk
No. 04-41065
Summary Calendar
TROY RANDELL EDMON,
Plaintiff-Appellant,
versus
BRENDA CHANEY; LYNDA KITE; CAROL VEAZEY; DARREN WALLACE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(6:02-CV-113)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Troy Randell Edmon, Texas prisoner # 857046, sued under 42
U.S.C. § 1983, claiming: prison officials denied him access to the
courts; deprived him of due process at a disciplinary hearing; and
retaliated against him for filing grievances against them. After
conducting a hearing pursuant to Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), overruled on other grounds by Neitzke v. Williams,
490 U.S. 319, 324 (1989), the district court dismissed the complaint
as frivolous.
*
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that this opinion should not be published and is not precedent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.
Proceeding in forma pauperis and pro se, Edmon contests that
dismissal and moves for appointment of counsel. That motion is
DENIED.
Edmon contends that the district court erred by not allowing
him to amend his complaint after the Spears hearing. This
contention is frivolous. The Spears hearing is one of the
principal means for allowing a litigant to amend his complaint by
clarifying or fleshing out his allegations. See Eason v. Thaler,
14 F.3d 8, 9 (5th Cir. 1994).
Edmon also contends that the district court should have given
him notice of the pending dismissal. Such a contention may be
liberally construed as a claim that the district court erred in
dismissing his complaint as frivolous. This claim is also
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(I) (Supp. 2005). Edmon
urges that the district court turned the Spears hearing into a
hearing under Federal Rule of Civil Procedure 56 when it
considered matters outside the pleadings. This claim is likewise
without merit because it is based on Edmon’s misapprehension that
the Spears hearing was conducted under Rule 12(b)(6).
Edmon contends that the district court should have ordered all
of the defendants to be served and that the district court should
have granted his motion for default judgment against those unserved
defendants. Similarly, Edmon contends that the district court
erred in refusing to order the unserved defendants to provide
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discovery to Edmon prior to the Spears hearing. A district court
must dismiss a complaint that it determines to be frivolous. 28
U.S.C. § 1915(e)(2)(B)(i). Service upon the defendants prior to
such a dismissal is not required. See id. Thus, Edmon’s claim
that the unserved defendants should have been ordered to answer his
complaint and provide discovery is frivolous.
Edmon’s contention that the district court erred in refusing
to subpoena Lynda Kite to testify at the Spears hearing is
unavailing, given the district court’s assumption that Edmon’s
allegations against Kite were true. Equally unavailing are Edmon’s
claims that the district court erred in dismissing parties over
which it lacked jurisdiction and in refusing to impose Rule 11
sanctions on those parties. The parties over whom the court had no
jurisdiction and who were the subject of Edmon’s sanction motion
were parties to a wholly different lawsuit.
Edmon’s appeal is without arguable merit; accordingly, it is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). The district court’s and our
dismissals both count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Edmon has already received one other strike. Edmon v.
Dallas County Sheriffs Dep’t, 67 F. App’x 241, 241 (5th Cir. 2003)
(unpublished) (stating that “[t]he dismissal of this appeal counts
as a ‘strike’ for purposes of 28 U.S.C. § 1915(g)”). Accordingly,
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because Edmon has received three strikes, he shall no longer be
allowed to proceed 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; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
28 U.S.C. § 1915(g) BAR IMPOSED
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