Miller v. Dewberry

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41139 Conference Calendar

FELIX AARON MILLER,

Plaintiff-Appellant,

versus

D. DEWBERRY, Captain, Beto I,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:00-CV-393 -------------------- February 14, 2001

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

PER CURIAM:*

Felix Miller, Texas prisoner # 555749, appeals the district

court’s dismissal of his 2000 42 U.S.C. § 1983 complaint as

frivolous. Miller argues that a prison official cut him with a

razor in 1996, that the official verbally threatened Miller in

1998, and that the official sent threatening letters to Miller in

1999.

The 1996 incident is plainly barred by the two-year statute

of limitations, and the district court did not abuse its

discretion in dismissing Miller’s remaining allegations as

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41139 -2-

frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii); see also

Flores v. Cameron County, Tex., 92 F.3d 258, 271 (5th Cir. 1996);

Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993). Miller’s

appeal lacks arguable merit, and the appeal is DISMISSED AS

FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5th Cir. R. 42.2.

Miller has more than three-strikes against him, and, after

Miller sought in forma pauperis status for his current appeal,

the three-strikes bar of 28 U.S.C. § 1915(g) was imposed against

him in a previous appeal. See Miller v. Lloyd, No. 00-10625 (5th

Cir. Oct. 17, 2000) (unpublished). We remind Miller that he

cannot proceed in forma pauperis in the district court or on

appeal except in cases in which he is under imminent danger of

serious physical injury. See § 1915(g); Adepegba v. Hammons, 103

F.3d 383, 387-88 (5th Cir. 1996).

DISMISSED AS FRIVOLOUS.