IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 06-10833
Conference Calendar Charles R. Fulbruge III
Clerk
GILBERT J VELEZ
Plaintiff-Appellant
v.
TDC AGENCY’S REP AND ADMINISTRATORS; NFN ROSAS, Correctional
Officer III; NFN CHAMBERLANE, Lieutenant; NFN AYNES, Captain; NFN
GENTRY, Major
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CV-1
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Gilbert J. Velez, Texas prisoner # 1042987, appeals the dismissal of his
42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915. Because Velez
concedes that he suffered no physical injury from the cold, he fails to state a
claim for cruel and unusual punishment. See 42 U.S.C. § 1997e(e); Jones v.
Greninger, 188 F.3d 322, 326 (5th Cir. 1999). Velez also fails to state a due
*
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should not be published and is not precedent except under the limited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. 06-10833
process claim given that he has no liberty interest in commissary and recreation
privileges or early release on parole. See Sandin v. Conner, 515 U.S. 472,
484 (1995); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988). Velez has
abandoned his legal mail claim by failing to brief it. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Velez fails to show that the district court
erred when it dismissed his suit as frivolous. See Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999).
Velez’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 is
dismissed. See 5TH CIR. R. 42.2. Velez is cautioned that the dismissal of this
appeal as frivolous, and the district court’s dismissal of his complaint as
frivolous, count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). He is cautioned that if he accumulates
three strikes under § 1915(g), he will be unable 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; SANCTION WARNING ISSUED.
2