Mosley v. Antoine ( 2003 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 02-20817
    Conference Calendar
    JAMES MOSLEY,
    Plaintiff-Appellant,
    versus
    KATTY ANTOINE,
    Defendant-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-02-CV-1416
    --------------------
    February 19, 2003
    Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    James Mosley, Texas prisoner #1023626, appeals the dismissal
    of his 
    42 U.S.C. § 1983
     complaint for failure to state a claim
    pursuant to 28 U.S.C. § 1915A.    In his complaint, he alleged that
    Katty Antoine used racial slurs and epithets, in violation of his
    right to be free from cruel and unusual punishment.
    We decline to consider Mosley’s untimely argument that the
    district court judge should have recused himself.        See Clay
    v. Allen, 
    242 F.3d 679
    , 681 (5th Cir. 2001); United States
    v. Sanford, 
    157 F.3d 987
    , 988-89 (5th Cir. 1998).
    *
    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    that this opinion should not be published and is not precedent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. 02-20817
    -2-
    Mosley’s claim that the district court erred in failing to
    give him notice of the court’s intention to dismiss his complaint
    and erred in failing to give him an opportunity to amend his
    complaint is also without merit.   Mosley has not alleged an
    arguable constitutional claim nor has he asserted any further
    facts that would have sustained an arguable claim.     See Graves v.
    Hampton, 
    1 F.3d 315
    , 319-20 (5th Cir. 1994).
    Finally, Mosley’s allegations of racial slurs and derogatory
    epithets do not state a cognizable civil rights claim.     Bender v.
    Brumley, 
    1 F.3d 271
    , 274 n.4 (5th Cir. 1993).    Mosley has alleged
    only a de minimis physical injury, which is not sufficient to
    sustain an Eighth Amendment claim under 42 U.S.C. § 1997e(e).
    Siglar v. Hightower, 
    112 F.3d 191
    , 193 (5th Cir. 1997).
    Because Mosley’s appeal is without arguable merit and is
    frivolous, it is DISMISSED.   See Howard v. King, 
    707 F.2d 215
    ,
    219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.   The dismissal of this
    appeal and the district court’s dismissal of Mosley’s complaint
    both count as a “strike” for purposes of 
    28 U.S.C. § 1915
    (g).
    See Adepegba v. Hammons, 
    103 F.3d 383
    , 385-87 (5th Cir. 1996).
    Mosley is CAUTIONED that if he accumulates another “strike” under
    
    28 U.S.C. § 1915
    (g), he will not be able 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).
    APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.