Olivarez v. Petter , 169 F. App'x 247 ( 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. 04-41319
Conference Calendar
LOUIS A. OLIVAREZ,
Plaintiff-Appellant,
versus
KIMBERLY KAY PETTER, Deputy/Jailer; MICHAEL
RATCLIFF, Sheriff; MICHAEL BUCHANIK,
Captain Deputy; DONNA ODEM-DOLLINS,
Fire Department Captain; VICTORIA
COUNTY TEXAS; CITY OF VICTORIA; VICTORIA
SHERIFFS OFFICE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CV-57
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Louis Olivarez, Texas prisoner # 1148316, appeals from the
district court’s dismissal of his prisoner civil rights
complaint pursuant to 42 U.S.C. § 1983 as frivolous. See 28
U.S.C. § 1915(e)(2)(B)(i). Olivarez argues that the district
court erred in dismissing his claims that rumors were
disseminated about his personal life, that he suffered
*
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this opinion should not be published and is not precedent except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. 04-41319
-2-
discrimination, and that two of the defendants were liable under
respondeat superior.
We review the district court’s dismissal of Olivarez’s
complaint as frivolous for an abuse of discretion. See Newsome
v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002).
Olivarez’s claim that Petter and Odem-Dollins disseminated
rumors surrounding his personal life is not cognizable under
§ 1983, as these actions were in pursuit of private aims rather
than in furtherance of state authority. See Harris v. Rhodes, 94
F.3d 196, 197 (5th Cir. 1996). Similarly, Olivarez’s claim that
Petter denied him access to the sheriff’s office in violation of
the Equal Protection Clause is meritless because Petter’s denial
was the result of a personal dispute with Olivarez. See id.Olivarez’s claim that Petter committed perjury which
resulted in his current incarceration for convictions of burglary
of a habitation and aggravated assault is premature and not
cognizable at this time under § 1983. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994).
Finally, Olivarez’s claim that Ratcliff and Buchanik are
liable for Petter’s actions solely due to their supervisory roles
is not cognizable under § 1983. See Thompkins v. Belt, 828 F.2d
298, 303-04 (5th Cir. 1987).
Olivarez’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). As such, it is dismissed. See 5TH CIR. R. 42.2.
No. 04-41319
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The district court’s dismissal of Olivarez’s claims pursuant
to § 1915(e)(2)(B)(i) and the dismissal of the instant appeal as
frivolous count as two strikes under § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Olivarez is
cautioned that once 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 § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.