Cook v. Grisham

U.S. Court of Appeals for the Fifth Circuit December 14, 1999

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60461 Conference Calendar

TROY E. COOK,

Plaintiff-Appellant,

versus

DAVID GRISHAM, Union County City Department, Chief of Police; JAMES O. FORD, Attorney at Law; RUBY ROBERTSON,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:99-CV-52-BD - - - - - - - - - -

December 14, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Troy E. Cook, Mississippi, prisoner # 033020, appeals the

dismissal of his

42 U.S.C. § 1983

complaint as frivolous. See

28 U.S.C. § 1915

(e)(2)(B)(i). Cook argues that the district court

erred in dismissing his complaint without first holding a hearing

pursuant to Spears v. McCotter,

766 F.2d 179

(5th Cir. 1985),

holding an evidentiary hearing, or allowing him to amend his

complaint.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60461 -2-

Cook has failed to meet the requirements of Heck v.

Humphrey,

512 U.S. 477, 486-87

(1994), and thus his complaint is

barred. In addition, Heck notwithstanding, Cook’s claim against

Ford, a private attorney, does not involve state action and is

not cognizable under § 1983. Hudson v. Hughes,

98 F.3d 868, 873

(5th Cir. 1996); O’Brien v. Colbath,

465 F.2d 358, 359

(5th Cir.

1972). Accordingly, Cook’s appeal is DISMISSED as frivolous.

See 5TH CIR. R. 42.2.

The district court’s dismissal counts as a strike against

Cook. See Adepegba v. Hammons,

103 F.3d 383, 387

(5th Cir.

1996). This court’s dismissal of the appeal as frivolous counts

as another strike.

Id.

Should Cook accumulate three strikes, he

may not proceed in forma pauperis in any civil action or appeal

filed while he is incarcerated or detained in any facility unless

he is in imminent danger of serious physical injury. See

28 U.S.C. § 1915

(g). Cook is cautioned to review any pending

appeals to ensure that they do not raise frivolous issues.

APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.

Reference

Status: Unpublished