Jackson v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40901 Conference Calendar

MELVIN JACKSON,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; UNIDENTIFIED DAVIS, Correctional Officer III, Second Shift Officer; UNIDENTIFIED GRIFFIN, Correctional Officer III, Second Shift Supervisor,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:00-CV-31 -------------------- February 14, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Melvin Jackson, Texas state prisoner #445084, proceeding pro

se and in forma pauperis, challenges the district court’s

dismissal of his 42 U.S.C. § 1983 lawsuit as frivolous and for

failure to state a claim. Although Jackson asserted in the

district court that the defendants failed to protect him from

another inmate and failed to supervise prison employees, he has

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40901 -2-

not raised on appeal, and has thus abandoned, those claims. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

For the first time on appeal, Jackson has raised an equal

protection claim. “The Court will not allow a party to raise an

issue for the first time on appeal merely because a party

believes that he might prevail if given the opportunity to try

again on a different theory.” See Leverette v. Louisville Ladder

Co., 183 F.3d 339, 342 (5th Cir. 1999) (internal citation

omitted). This court will therefore not consider Jackson’s equal

protection claim.

Because Jackson’s appeal is without arguable merit, it is

frivolous and must be dismissed. See Ruiz v. United States, 160

F.3d 273, 274-75 (5th Cir. 1998); see also 28 U.S.C.

§ 1915(e)(2)(B)(i); 5th Cir. R. 42.2. This dismissal of a

frivolous appeal following the district court’s dismissal of the

lawsuit as frivolous constitutes two strikes against Jackson for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996). If one other district court

action or appeal filed by Jackson is dismissed as frivolous, he

will be barred from bringing a civil action or appeal as a

prisoner proceeding in forma pauperis unless he is under imminent

danger of serious physical injury. See 28 U.S.C. § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.