Dolan v. Gary , 177 F. App'x 406 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 18, 2006
Charles R. Fulbruge III
Clerk
No. 04-41523
Summary Calendar
CARL RAYMOND DOLAN,
Plaintiff-Appellant,
versus
J. KEITH GARY; ET AL.,
Defendants,
J. KEITH GARY; UNKNOWN OFFICERS of Grayson County Texas; NEOSHA
TRIMBLE; SHEILA RATHFON; CONTROL MONITOR FNU PICKETT; GRAYSON
COUNTY JAIL; GRAYSON COUNTY COMMISSIONERS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CV-286
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
Carl Raymond Dolan, Texas prisoner #1004499, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 suit as
frivolous and for failure to state a claim pursuant to 28 U.S.C.
*
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this opinion should not be published and is not precedent except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. 04-41523
-2-
§ 1915(e). His civil rights lawsuit alleged that the defendants
failed to protect him from an attack by another inmate in the
Grayson City Jail.
Dolan does not address the district court’s finding that the
defendant’s actions were, at most, negligent, and did not
constitute deliberate indifference, and he alleges no facts which
would indicate that the defendants knew Dolan faced an excessive
risk of harm from the other inmate on the day in question. See
Farmer v. Brennan, 511 U.S. 825, 833, 837 (1994). Dolan’s
arguments that the district court erred in dismissing his lawsuit
without first allowing discovery, that the district court erred
in not allowing him to have a jury trial, and that the dismissal
of his lawsuit constituted a denial of access to the courts are
without merit. The district court can dismiss a suit “at any
time” if it determines that it is frivolous or fails to state a
claim. See 28 U.S.C. § 1915(e). In addition, the district court
did not abuse its discretion in denying Dolan’s motions for
appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th
Cir. 1987).
As Dolan’s appeal lacks arguable merit, it is DISMISSED AS
FRIVOLOUS. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. The district court’s dismissal of his
case as frivolous and for failure to state a claim and the
dismissal of the instant appeal as frivolous count as two strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
No. 04-41523
-3-
383, 385-87 (5th Cir. 1996). Dolan 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 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.