Kadlec v. Garcia

U.S. Court of Appeals for the Fifth Circuit December 13, 2001

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40898 Conference Calendar

DENNIS MITCHELL KADLEC,

Plaintiff-Appellant,

versus

ROY TONY GARCIA, Warden, Coffield Unit; UNIDENTIFIED MALONE, Sergeant, Coffield Unit; UNIDENTIFIED HUDSON, Correctional Officer, Coffield Unit; UNIDENTIFIED RANDALL, Correctional Officer, Coffield Unit; UNIDENTIFIED MALICHI, Correctional Officer, Coffield Unit,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:00-CV-688 - - - - - - - - - - December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Dennis Mitchell Kadlec, Texas prisoner # 791082, appeals

from the district court’s dismissal without prejudice of his

42 U.S.C. § 1983

complaint for failure to exhaust administrative

remedies. Kadlec has failed to brief this issue, as he has

provided neither argument nor authorities to show that the

district court erred in dismissing his suit. See Yohey v.

Collins,

985 F.2d 222, 225

(5th Cir. 1993); Fed. R. App. P.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40898 -2-

28(a)(9). The appeal is without arguable merit and is thus

frivolous. See Howard v. King,

707 F.2d 215, 220

(5th Cir.

1983). Because this appeal lacks merit, it is DISMISSED. See

5th Cir. R. 42.2.

This dismissal of Kadlec’s appeal as frivolous counts as a

“strike” for the purposes of

28 U.S.C. § 1915

(g). See Adepegba

v. Hammons,

103 F.3d 383, 387

(5th Cir. 1996). Additionally,

Kadlec garnered one “strike” when a previous

42 U.S.C. § 1983

suit was dismissed by the district court as frivolous. See

Kadlec v. Garcia, No. 01-40455 (5th Cir., July 30, 2001). Kadlec

also garnered one “strike” when a previous

42 U.S.C. § 1983

suit

was dismissed by the district court as frivolous and for failure

to state a claim. See Kadlec v. Officer Hanes, No. 6:00-CV-435

(E.D. Tex., Jan. 8, 2001). Kadlec thus has at least three

“strikes.” Accordingly, Kadlec is BARRED from proceeding IFP 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 BAR IMPOSED.

Reference

Status: Unpublished