United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-40856
Summary Calendar
DARNELL SMITH,
Plaintiff-Appellant,
versus
PETER D. SCHAEFER, Law Library Administrator; CATHY L. MOORES,
Law Library Supervisor; JUAN A. GUTIERREZ, Laundry Manager III;
EILEEN KENNEDY, Assistant Warden; THOMAS J. PRASIFKA, Senior
Warden; GILBERT L. HERRERA, Grievance Investigator III; HILDA
SILVAS, Grievance Investigator II; DAVID R. DIAZ, Mailroom
Supervisor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-331
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Darnell Smith, Texas prisoner number 666016, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 suit, which
was filed to seek redress for alleged acts of retaliation and
denial of his rights of access to courts and equal protection.
Smith argues that the district court improperly construed his
suit and erred by rejecting his myriad claims.
*
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this opinion should not be published and is not precedent except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. 05-40856
-2-
Smith contends that the district court misconstrued his
filings and erred by dismissing his retaliation claims. Our
review of the record reveals no such error. The district court’s
construction of Smith’s claims is based on a reasonable reading
of his voluminous pleadings. Further, the district court did not
err by dismissing Smith’s retaliation claims. Smith failed to
allege facts from which retaliation could plausibly be inferred,
and most of the adverse acts of which he complains are de
minimis. See Morris v. Powell, 449 F.3d 682, 684-86 (5th Cir.
2006); Jones v. Greninger, 188 F.3d 322, 324-26 (5th Cir. 1999);
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Smith has
shown no error in connection with the district court’s dismissal
of his retaliation claims.
Smith likewise has shown no error concerning the district
court’s dismissal of his Equal Protection claim because his
allegations concerning this claim do not show that the alleged
improper acts that form the basis for his suit were motivated by
racial animus. See Taylor v. Johnson, 257 F.3d 470, 473 (5th
Cir. 2001); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528,
533 (5th Cir. 1997). Smith’s challenge to the district court’s
dismissal of his claim that he was denied access to courts fails
because he has not demonstrated prejudice in connection with the
defendants’ actions. See Lewis v. Casey, 518 U.S. 343, 351
(1996); McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir.
1998). To the extent Smith requests that state law claims
No. 05-40856
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concerning “emotional and mental anguish” be allowed to proceed,
he asserted no such claims in his complaint, nor does he allege
that the district court erred by failing to consider such claims.
Moreover, Smith does not reference such claims again in his
brief, and they are appropriately deemed waived. See United
States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) (“Failure
of an appellant to properly argue or present issues in an
appellate brief renders those issues abandoned.”). The district
court’s judgment is affirmed.
The district court’s dismissal of Smith’s suit counts as a
strike under the three-strikes provision of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Additionally, Smith garnered at least two other strikes when
prior suits were dismissed. See Smith v. Pollunsky, No. C-99-501
(S.D. Tex. Mar. 16, 2000), aff’d, No. 00-40362 (5th Cir. Sept. 5,
2000); Smith v. Barrios, No. C-98-101 (S.D. Tex. Aug. 3, 1998),
appeal dismissed, No. 98-41090 (5th Cir. 98-41090); see also
Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir.
1998). Because Smith has at least three strikes under § 1915(g),
he is barred from 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 Adepegba, 103 F.3d at 388; § 1915(g).
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.