IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2007
No. 05-20591
Summary Calendar Charles R. Fulbruge III
Clerk
ROBERT MCLENDON, also known as Robert Blakley McLendon
Plaintiff-Appellant
v.
HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE; HARRIS COUNTY
SHERIFF’S DEPARTMENT; DENISE NASSER
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-1320
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Robert McLendon, Texas prisoner # 1194359, filed a notice of appeal from
the district court’s February 16, 2005, dismissal of his 42 U.S.C. § 1983 suit and
the district court’s June 13, 2005, denial of his “Motion to Alter Judgment.”
His notice of appeal is timely only as to the denial of his “Motion to Alter
Judgment,” which is treated as a FED. R. CIV. P. 60(b) motion because it was
mailed more than 10 days after entry of the order dismissing his civil rights suit.
*
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should not be published and is not precedent except under the limited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. 05-20591
See FED. R. APP. P. 4(a)(1)(A); FED. R. CIV. P. 6(b); Bowles v. Russell,
127 S. Ct. 2360, 2366 (2007); Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).
Because McLendon’s appeal from the dismissal of his § 1983 suit was untimely,
that appeal is dismissed for lack of jurisdiction. See Dison, 20 F.3d at 186.
We review a denial of a FED. R. CIV. P. 60(b) motion under an
abuse-of-discretion standard. See Travelers Ins. Co. v. Liljeberg Ent.,
38 F.3d 1404, 1408 (5th Cir. 1994); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
402 (5th Cir. 1981). On appeal, McLendon abandons those claims that the
district court concluded were barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Accordingly, he has not shown that the district court abused its discretion in
rejecting the arguments he made regarding those claims in his post-judgment
motion.
McLendon argues, as he did in his “Motion to Alter Judgment,” that the
district court failed to address his claim that his placement in administrative
segregation while he was a pretrial detainee in the Harris County jail violated
his due process rights. He also argues, as he did in his “Motion to Alter
Judgment,” that the district erred in assuming there was a legitimate
penological objective for the Harris County jail’s use of restraints while he was
exercising. His assertions that his placement in administrative segregation was
not reasonably related to assistant district attorney Denise Nassar’s concern
that he had mailed a letter to another assistant district attorney’s home and that
he was forced to exercise alone in a cage while restrained were not, however,
raised in his § 1983 suit. Based upon the allegations made in McLendon’s § 1983
complaint, the evidence he submitted in connection with his complaint, and the
arguments made in his “Motion to Alter Judgment,” the district court did not
abuse its discretion in denying McLendon’s post-judgment motion. See FED. R.
CIV. P. 60(b)(1)-(6); see also Knapp v. Dow Corning Corp., 941 F.2d 1336, 1338
(5th Cir. 1991); Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002); Scott v.
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No. 05-20591
Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc); Hare v. City of Corinth, 74 F.3d
633, 645 (5th Cir. 1996) (en banc).
Because McLendon’s appeal from the denial of his post-judgment motion
is without arguable merit, it is dismissed as frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); see 5TH CIR. R. 42.2. The dismissal of his
appeal counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). The district court’s dismissal of his § 1983 suit
pursuant to 28 U.S.C. § 1915A(b)(1) also counts as a strike for purposes of
§ 1915(g). McLendon is warned that once he accumulates three strikes, he may
not 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.
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