Wehmhoefer v. Vasquez, 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this opinion should not be published and is not precedent except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
December 29, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20139
Summary Calendar
SCOTT NATHON WEHMHOEFER,
Plaintiff-Appellant,
versus
AVAIRO VASQUEZ, Warden; WARDEN LAVAND; WARDEN W. L. STACK,
(pseudonym) Dewade Easley,
Defendants-Appellees.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-205
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Scott Nathon Wehmhoefer, Texas prisoner # 795907, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a cognizable federal claim and alternatively as
frivolous and malicious. Wehmhoefer asserts that the defendants
forged and stole annuity checks belonging to him and that despite
efforts to obtain his money, he was denied access to it.
The district court did not err in concluding that Wehmhoefer’s
claim for the intentional deprivation of personal property should

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No. 06-20139
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be dismissed for failing to state a claim for which relief may be
granted. See Hudson v. Palmer, 468 U.S. 517, 533; Murphy v.
Collins, 26 F. 3d 541, 543-44 (5th Cir. 1994). Texas has adequate
postdeprivation remedies for the confiscation of prisoner property.
See Murphy, 26 F.3d at 543.
Wehmhoefer also fails to show that the district court erred in
dismissing his complaint as frivolous and malicious based on a
finding that his previous lawsuits were nearly identical. Although
Wehmhoefer argues that the instant complaint was forged or altered,
his argument on appeal is identical to the claim raised in the
complaint filed in the district court.
Wehmhoefer’s appeal is without arguable merit, is frivolous,
and therefore dismissed. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). His motion for the appointment
of counsel is also denied. The district court’s dismissal of
Wehmhofer’s complaint counts as a strike for purposes of 28 U.S.C.
§ 1915(g), as does the dismissal of the instant appeal. See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Wehmhoefer has accumulated one other strike in Wehmhoefer v.
Kitchel, No. 4:05-CV-3140. Because Wehmhoefer has now accumulated
three strikes, he is barred from proceeding 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).

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No. 06-20139
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APPEAL DISMISSED; MOTION DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED.

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