Doines v. Johnson, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10259
Conference Calendar
DONALD DOINES,
Plaintiff-Appellant,
versus
GARY JOHNSON; ET AL.,
Defendants,
MARGARET MCCLEARY; LANCE PORTER; RICHARD ELLIS; WILLIAM
WHITE; CHRISTOPHER ABSHIRE; JANICE BAKER; PHILIP HULSEY;
GLEN D. STOUDER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:04-CV-42
--------------------
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Donald Doines, Texas prisoner # 1046547, filed a 42 U.S.C.
§ 1983 civil rights complaint against several officials at his
prison facility alleging constitutional violations arising from
the use of vulgar language, malicious prosecution of false
disciplinary cases, a missed meal, and the denial of prescribed
medication. The district court dismissed Doines’s complaint with

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No. 06-10259
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prejudice as frivolous and for failure to state a claim under
28 U.S.C. §§ 1915A, 1915(e)(2), and 42 U.S.C. § 1997e.
Doines argues on appeal that the district court should have
conducted a thorough hearing prior to dismissing his claims.
He contends that such a hearing would have shown his allegations
to be true. The district court, however, did not dismiss any
of Doines’s claims on the ground that they were untruthful. By
failing to address the bases of the district court’s dismissal,
Doines has effectively waived the only appealable issue.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
Doines’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
His appeal is dismissed as frivolous. See 5TH CIR. R. 42.2. The
district court’s dismissal of Doines’s complaint and this court’s
dismissal of his appeal each count as a strike against Doines
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Doines is cautioned that
if he accumulates three strikes pursuant to § 1915(g), he will
not be able 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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