IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-30106
Conference Calendar Charles R. Fulbruge III
Clerk
MILES ORLANDO LEE
Plaintiff-Appellant
v.
COUNSELOR BURKE; ASSOCIATE DEPUTY WARDEN ENDFIELD;
LIEUTENANT BOWERS; SUPERVISORY GUILLORY; MS HUGHES;
CAPTAIN MARQUES
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-1718
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Miles Orlando Lee, federal prisoner # 11199-040, appeals the dismissal of
his Bivens 1 complaint as frivolous and for failure to state a claim upon which
relief could be granted. Lee’s appellate brief fails to assign error to or address
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
No. 08-30106
the district court’s reasons for dismissal and is devoid of legal argument and
citation to authority. The clerk of this court afforded Lee an additional 10 days
in which to file a brief in compliance with the Federal Rules of Appellate
Procedure or risk waiver of his appellate issues. Lee made no further filings.
Lee has therefore waived review of the district court’s dismissal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Lee has not shown an abuse of
discretion on the part of the district court in denying him leave to amend his
complaint, see Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1053
(5th Cir. 1998), and his fraud claim does not raise a constitutional issue and is
therefore not cognizable in a Bivens complaint, see Cornish v. Corr. Servs. Corp.,
402 F.3d 545, 549 (5th Cir. 2005).
Lee’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is therefore dismissed. 5 TH C IR.
R. 42.2. The district court’s dismissal and the dismissal of Lee’s appeal count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996). Lee is cautioned that if he accumulates three
strikes, he will no longer be allowed to proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is in imminent danger of serious physical injury. See § 1915(g)
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2