United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-41300
Conference Calendar
ROBERT S. DAIL,
Plaintiff-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; F. E. BOATING; SERGEANT
KUFEJI; MS. HARDY; ASSISTANT WARDEN LUMPKIN; V. KATRAGADDA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CV-504
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Robert S. Dail, Texas prisoner # 750883, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous. Dail asserts that the district court abused its
discretion when it failed to consider additional material that he
introduced in his objections to the magistrate judge’s second
report and recommendation. Arguably, the district court could
have construed Dail’s objections as a constructive motion for
leave to supplement his § 1983 action. See FED. R. CIV. P. 15(d).
*
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this opinion should not be published and is not precedent except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. 05-41300
-2-
However, because Dail, a Texas prisoner, had “no constitutional
expectancy of parole,” Malchi v. Thaler, 211 F.3d 953, 957 (5th
Cir. 2000) (internal quotation marks and citation omitted), the
district court did not abuse its discretion when it did not allow
Dail to supplement his § 1983 action to assert that his
disciplinary conviction affected his parole. See Burns v. Exxon
Corp., 158 F.3d 336, 343 (5th Cir. 1998); Doe v. Rains County
Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).
Dail also argues that the district court abused its
discretion when it determined that he could not recover nominal
damages. Because Dail failed to establish that his
constitutional rights had been violated, the district court did
not abuse its discretion when it dismissed Dail’s claims that
sought nominal damages. See Martin v. Scott, 156 F.3d 578, 580
(5th Cir. 1998); Doe, 66 F.3d at 1406.
Dail further argues that the district court abused its
discretion when it dismissed his § 1983 claims as frivolous.
Because Dail’s allegations that the defendants violated his
constitutional rights in relation to his disciplinary conviction
lacked an arguable basis in law, the district court did not abuse
its discretion when it dismissed Dail’s complaint as frivolous.
See Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998);
Martin, 156 F.3d at 579-80.
For the reasons set forth above, Dail’s appeal lacks an
arguable basis in law, is without arguable merit, and is
No. 05-41300
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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
counts as a strike under 28 U.S.C. § 1915(g), as does the
district court’s dismissal of Dail’s complaint. See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Dail had two prior strikes. Dail v. Cook, No. 3:02-CV-654
(S.D. Tex. Apr. 30, 2004); Dail v. United States, No. 3:00-CV-
2354 (N.D. Tex. May 22, 2001). Because Dail has accumulated 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 § 1915(g).
Dail’s motion to preserve evidence is denied.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; MOTION
DENIED.