Field v. Kottemann

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 13, 2007 Charles R. Fulbruge III Clerk No. 05-60061 Conference Calendar JOHN CLAYTON FIELD, Plaintiff-Appellant, versus TIMOTHY P. KOTTEMANN; DONALD SMITH, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:01-CV-492 -------------------- Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* John Clayton Field, Mississippi prisoner # K2672, appeals the district court’s denial of his FED. R. CIV. P. 60(b) motion following the dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). He raises numerous allegations of ineffective assistance of counsel relating to his guilty-plea conviction for sexual battery of a child. Field does not address the basis of the district court’s denial of his Rule 60(b) motion. Because he has not identified * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-60061 -2- any error in the district court’s denial of his Rule 60(b) motion, Field has abandoned the only issue before the court on appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Field’s appeal is without merit and therefore is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s dismissal of Field’s § 1983 complaint pursuant to § 1915(e)(2)(B)(ii) and this court’s dismissal of this appeal as frivolous both count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Field is warned that if he accumulates three strikes under § 1915(g), he will not be allowed to proceed in forma pauperis in any civil action or appeal 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.