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Mosley v. Antoine ( 2003 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20817
Conference Calendar
JAMES MOSLEY,
Plaintiff-Appellant,
versus
KATTY ANTOINE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-1416
--------------------
February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
James Mosley, Texas prisoner #1023626, appeals the dismissal
of his
    42 U.S.C. § 1983
     complaint for failure to state a claim
pursuant to 28 U.S.C. § 1915A.    In his complaint, he alleged that
Katty Antoine used racial slurs and epithets, in violation of his
right to be free from cruel and unusual punishment.
We decline to consider Mosley’s untimely argument that the
district court judge should have recused himself.        See Clay
v. Allen,
    242 F.3d 679
    , 681 (5th Cir. 2001); United States
v. Sanford,
    157 F.3d 987
    , 988-89 (5th Cir. 1998).
*
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that this opinion should not be published and is not precedent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. 02-20817
-2-
Mosley’s claim that the district court erred in failing to
give him notice of the court’s intention to dismiss his complaint
and erred in failing to give him an opportunity to amend his
complaint is also without merit.   Mosley has not alleged an
arguable constitutional claim nor has he asserted any further
facts that would have sustained an arguable claim.     See Graves v.
Hampton,
    1 F.3d 315
    , 319-20 (5th Cir. 1994).
Finally, Mosley’s allegations of racial slurs and derogatory
epithets do not state a cognizable civil rights claim.     Bender v.
Brumley,
    1 F.3d 271
    , 274 n.4 (5th Cir. 1993).    Mosley has alleged
only a de minimis physical injury, which is not sufficient to
sustain an Eighth Amendment claim under 42 U.S.C. § 1997e(e).
Siglar v. Hightower,
    112 F.3d 191
    , 193 (5th Cir. 1997).
Because Mosley’s appeal is without arguable merit and is
frivolous, it is DISMISSED.   See Howard v. King,
    707 F.2d 215
    ,
219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.   The dismissal of this
appeal and the district court’s dismissal of Mosley’s complaint
both count as a “strike” for purposes of
    28 U.S.C. § 1915
    (g).
See Adepegba v. Hammons,
    103 F.3d 383
    , 385-87 (5th Cir. 1996).
Mosley is CAUTIONED that if he accumulates another “strike” under
    28 U.S.C. § 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
    28 U.S.C. § 1915
    (g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.