IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40761 (Summary Calendar)

CLYDE NUBINE,

Plaintiff-Appellant,

versus

A.M. STRINGFELLOW; WAYNE SCOTT; GARY JOHNSON, Warden; ALAN B. POLUNSKY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas (C-00-CV-129) -------------------- November 28, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Clyde Nubine, Texas state prisoner #

398312, appeals the magistrate judge’s dismissal of his civil

rights claims as frivolous and for failure to state a claim under

(e)(2)(B)(i) and (ii). The shackling of Nubine

during transport constituted a rational security measure. See

Jackson v. Cain,

(5th Cir. 1989). Nubine’s

allegations of conspiracy and retaliation are conclusional and thus

fail to give rise to a

claim. See Babb v. Dorman,

(5th Cir. 1994).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Nubine argues that 42 U.S.C. § 1997e(e) is unconstitutional

but admitted at his Spears1 hearing that his challenge to §

1997e(e) was “theoretical.” Nubine lacks standing to challenge

that statute.

Nubine contests the magistrate judge’s denial of his request

for a temporary restraining order (TRO). We have no jurisdiction

to review a denial of an application for a TRO. Faulder v. Johnson,

(5th Cir. 1999).

Because this appeal is frivolous, it is DISMISSED. See Howard

v. King,

(5th Cir. 1983); 5th Cir. R. 42.2.

The dismissal as frivolous of this appeal and the magistrate

judge's dismissal as frivolous of Nubine's action each count as a

“strike” for purposes of

(g). See Adepegba v.

Hammons,

(5th Cir. 1996). We caution Nubine

that once he accumulates 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 under

imminent danger of serious physical injury. See § 28 U.S.C.

1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

1 Spears v. McCotter,

(5th Cir. 1985).

2