United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2006
Charles R. Fulbruge III
Clerk
No. 05-10394
Summary Calendar
JOHN JULIAN DAYSE,
Plaintiff-Appellant,
versus
JOHN DOE; JOHN BENNETT; ROGELIO PEREZ; BRUCE SHIELDS;
CAPTAIN FRANK POHLMEIER; KELLI WARD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CV-254
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
John Julian Dayse, Texas inmate # 498384, appeals the
dismissal of his 42 U.S.C. § 1983 action as frivolous and for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). Dayse
contends that the defendants placed him in a holding cell for
three hours in retaliation for his threats to file a grievance
against defendant Doe, a prison guard, when Doe refused to change
the television channel.
*
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this opinion should not be published and is not precedent except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. 05-10394
-2-
Dayse’s complaint and his response to the district court’s
questionnaire reveal that he failed to allege facts to establish
retaliation for the exercise of a constitutionally protected
right. See Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th Cir.
1997). Dayse’s allegations also fail to show that he was
deprived of any constitutionally protected interest, or that any
defendant acted with deliberate indifference to his health or
safety. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Farmer
v. Brennan, 511 U.S. 825, 847 (1994). The judgment of the
district court is AFFIRMED.
Dayse is warned that the district court’s dismissal of his
action as frivolous counts as a strike under 28 U.S.C. § 1915(g).
If Dayse accumulates three strikes, he will not be able 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 Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); 28 U.S.C.
§ 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.