United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2006
Charles R. Fulbruge III
Clerk
No. 04-20683
Summary Calendar
DERRICK ANTHONY WALKER,
Plaintiff-Appellant,
versus
DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-2020
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Derrick Anthony Walker, Texas prisoner # 110315, seeks to
appeal the district court’s dismissal of his 42 U.S.C. § 1983
complaint as frivolous. Walker’s notice of appeal was timely
only with respect to the district court’s denial of Walker’s
postjudgment motion, which is properly characterized as a motion
filed under FED. R. CIV. P. 60(b). See Harcon Barge Co., Inc. v.
D & G Boat Rentals, Inc., 784 F.2d 665, 668-69 (5th Cir. 1986)
(en banc).
*
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this opinion should not be published and is not precedent except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. 04-20683
-2-
Walker maintains that the defendant violated his
constitutional rights by forcing him to work while he was
incarcerated. This court has explicitly upheld the Texas
prison’s practice of requiring inmates to work against the
challenge that such a practice amounted to involuntary servitude.
Wendt v. Lynaugh, 841 F.2d 619, 620-21 (5th Cir. 1988); see also
Murray v. Mississippi Dep’t of Corrections, 911 F.2d 1167, 1167-
68 (5th Cir. 1990). Consequently, the district court did not
abuse its discretion in denying Walker’s Rule 60(b) motion.
Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1345
(5th Cir. 1992)
Walker’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 should be dismissed. See
5TH CIR. R. 42.2. Walker should be cautioned that the dismissal
of this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g), as does the district court’s dismissal of his
complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Walker is cautioned that, if he accumulates three
strikes under § 1915(g), he will not be permitted 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 § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.