U.S. Court of Appeals for the Fifth Circuit, 2004

King v. Ellingburg

King v. Ellingburg
U.S. Court of Appeals for the Fifth Circuit · Decided April 19, 2004 · Jolly, Jones, Per Curiam, Smith
95 F. App'x 104

King v. Ellingburg

Opinion

PER CURIAM. *

David Lerone King, Texas prisoner # 592507, appeals the district court’s dismissal with prejudice of his in forma pauperis (IFP) civil rights suit as frivolous and for failure to state a claim. King argues that he has alleged the existence of a specific constitutional right, ie., his right to file a grievance, and that the defendants retaliated against him for exercising that right by conducting unauthorized searches, confiscating his property, changing his job, and finding him guilty of disciplinary violations. Because King has not briefed the other issues he raised in his compliant, those issues are waived. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

King’s allegations make clear that the alleged retaliatory actions stemmed not from filing his own grievances but from his activity assisting over 100 other prisoners to file grievances on a particular issue. Such secondary litigation activity does not “comprise the basis of a retaliation claim.” See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).

King’s appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, we DISMISS his appeal as frivolous. 5th Cir. R. 42.2. The dismissal of this appeal as frivolous and the district court’s dismissal of his complaint as frivolous and for failure to state a claim count as “strikes” under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). King is WARNED that if he accumulates three “strikes” under 28 U.S.C. § 1915(g), he will not be able to proceed 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).

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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