Nieto v. Reeves-Galloway , 169 F. App'x 221 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-21017
Conference Calendar
MARIO JOSEPH NIETO,
Plaintiff-Appellant,
versus
B. REEVES-GALLOWAY, Texas Department of Criminal Justice-
Institutional Division Correctional Officer; J. KARNES,
Texas Department of Criminal Justice-Institutional
Division Correctional Officer; M. BRIGHT, Texas Department
of Criminal Justice-Institutional Division Correctional
Officer; B. GRAHAM, Texas Department of Criminal Justice-
Institutional Division Correctional Officer; M. HYDE, Texas
Department of Criminal Justice-Institutional Division
Correctional Officer; J. RAGAN, Texas Department of Criminal
Justice-Institutional Division Correctional Officer, Inmate
Property Officer; T. SMITH, Texas Department of Criminal
Justice-Institutional Division Correctional Officer;
J. ROSSER, Texas Department of Criminal Justice-Institutional
Division Correctional Officer; R. NEWLON, Texas Department of
Criminal Justice-Institutional Division Correctional
Officer; G. GRIFFIN, Texas Department of Criminal
Justice-Institutional Division Correctional Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-1662
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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. 04-21017
-2-
Mario Nieto, Texas inmate # 591239, appeals the dismissal of
his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B). Nieto’s arguments that the defendants subjected
him to cruel and unusual punishment in violation of the Eighth
Amendment because they failed to protect him from another inmate
and used excessive force lack legal bases. See Jones v.
Greninger, 188 F.3d 322, 326 (5th Cir. 1999); 42 U.S.C.
§ 1997e(e); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.
2001). Nieto’s claim that the defendants denied him access to
the courts is likewise without a legal basis. See Walker v.
Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).
Nieto’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, the appeal is dismissed. See 5TH CIR. R. 42.2.
The dismissal of Nieto’s complaint as frivolous and of this
appeal as frivolous each count as “strikes” for purposes of the
three-strikes provision, 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Nieto is warned that
if he accumulates three strikes, he will not be permitted to
proceed in forma pauperis 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).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.