Hinkle v. Countz

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 01-10173
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10173 Conference Calendar

ERIC RANDALL HINKLE,

Plaintiff-Appellant,

versus

MICHAEL W. COUNTZ; WAYNE SCOTT; GARY JOHNSON; J.K. PRICE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:00-CV-179 -------------------- June 13, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Eric Randall Hinkle, Texas prisoner # 849430, appeals the

district court’s judgment dismissing his 42 U.S.C. § 1983 action

as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Hinkle

argues that he cannot be forced to work because labor was not

specifically ordered as part of his sentence. He argues that the

Thirteenth Amendment invalidates all state laws requiring

prisoners to work.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10173 -2-

According to Hinkle’s pleadings, his work consisted of

kitchen and laundry housekeeping chores, which did not violate

the Thirteenth Amendment. Channer v. Hall, 112 F.3d 214, 218-19

(5th Cir. 1997) (recognizing the existence of a judicially-

created “housekeeping-chore” exception to the prohibition against

involuntary servitude). The district court did not abuse its

discretion in dismissing his complaint as frivolous. Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

Hinkle’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. Hinkle is hereby informed that the dismissal of this

appeal as frivolous counts as a strike for purposes of 28 U.S.C.

§ 1915(g), in addition to the strike for the district court’s

dismissal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996) (“[D]ismissals as frivolous in the district courts or the

court of appeals count [as strikes] for the purposes of

[§ 1915(g)].”). We caution Hinkle that once he accumulates three

strikes, he may not proceed IFP 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 28

U.S.C. § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS.