Charles Allen, Sr. v. Nathaniel Quarterman

367 F. App'x 544

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 25, 2010
• Docket: 09-20442
• Status: Unpublished

Opinion

PER CURIAM: *

Charles Anthony Allen, Sr., Texas prisoner # 1043550, filed a 42 U.S.C. § 1983 complaint against several prison officials asserting Eighth Amendment and due process claims arising out of an incident and the resulting disciplinary proceedings. The district court dismissed Alen’s complaint as frivolous because it was filed more than two years after the applicable limitations period had expired, and Alen was not entitled to equitable tolling. Alen now appeals.

We agree with the district court that Alen’s complaint was filed after the expiration of the two-year limitations period and that his two prior federal lawsuits, dismissed for want of prosecution and improper joinder, did not operate to toll the limitations period. See, e.g., Holmes v. Tex. A & M Univ., 145 F.3d 681, 684-85 (5th Cir.1998). As Alen’s appeal is without merit, we dismiss it as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983); 5th Cir. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). Alen is cautioned that once he accumulates three strikes, he may not proceed in forma pau-peris 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.

* Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.