Alexander v. Milligan ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-41728
Summary Calendar
FRED FRANKLIN ALEXANDER,
Plaintiff-Appellant,
versus
SHERRI L. MILLIGAN; ROBERT HERERRA; SUSAN L. SCHUMACHER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CV-203
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Before REAVLEY, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Fred Franklin Alexander, Texas prisoner # 632874, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 suit
pursuant to 28 U.S.C. § 1915A(b)(1). We review the district
court’s dismissal of his suit de novo.
Alexander is correct that the district court erred in
finding that he did not timely file objections to the magistrate
judge’s report. Moreover, because the objections were filed
within 10 days of the final judgment, the objections should have
*
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this opinion should not be published and is not precedent except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. 05-41728
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been construed by the district court as a FED. R. CIV. P. 59(e)
motion. See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th
Cir. 1994); United States v. Gallardo, 915 F.2d 149, 150 n.2 (5th
Cir. 1990). Because Alexander’s appeal is frivolous, we
pretermit the jurisdictional issue presented by the failure of
the district court to rule on the Rule 59(e) motion. See FED. R.
APP. P. 4(a)(4)(A)(iv); Burt v. Ware, 14 F.3d 256, 260-61 (5th
Cir. 1994); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.
2000).
Alexander has not challenged the district court’s findings
that he failed to state a claim of an unconstitutional denial of
property and that he failed to state a claim of retaliation.
These claims have been abandoned. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
Alexander’s allegations of perjury, conspiracy, and court
bias are conclusory and unsupported. See Brinkmann v. Johnston,
793 F.2d 111, 113 (5th Cir. 1986). Moreover, his assertions of
perjury do not indicate any reversible error by the district
court because the district court’s dismissal of his complaint
relied neither on the testimony of Officer Satterwhite and Warden
Pratt nor on a finding that the defendants properly followed
prison policy in disposing of Alexander’s legal materials.
With respect to Alexander’s claim of the denial of access to
courts, he has not shown that he will suffer actual injury in any
legal proceeding based upon the destruction of a probable cause
No. 05-41728
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statement relating to a 1980 conviction for burglary that was
used to enhance his current sentence. See Lewis v. Casey, 518
U.S. 343, 351-52, 355 (1996). By pleading true to the
enhancement, Alexander waived his challenge to the 1980
conviction. Cook v. Lynaugh, 821 F.2d 1072, 1075 (5th Cir.
1987).
Even assuming Alexander could collaterally challenge his
1992 conviction, more than 15 years after his sentence was
imposed, and that his habeas petition would not otherwise be
procedurally barred, he cannot show that he would suffer any
actual injury during a legal proceeding because of the now-
destroyed probable cause statement. The probable cause statement
allegedly provided that he committed the offense of burglary on
March 10, 1980. Alexander can demonstrate via documents that are
already in his possession that there was some confusion or error
regarding the date his burglary offense was committed. As
Alexander concedes, however, the Texas Court of Criminal Appeals
has determined that the burglary offense occurred on March 9,
1980. See Ex parte Alexander, 685 S.W.2d at 59. Moreover,
according to Alexander, the probable cause statement indicated
that he committed the offense of burglary. Thus, the probable
cause statement tended to prove, not disprove, that he committed
the offense of burglary.
Alexander’s appeal is frivolous and is dismissed. See See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R.
No. 05-41728
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42.2. The district court’s dismissal of his § 1983 suit pursuant
to § 1915A and this court’s dismissal of this appeal as frivolous
each count as “strikes” for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Alexander has previously been issued two strikes. See Alexander
v. Masters, No. 99-21085 (5th Cir. Apr. 14, 2000). As Alexander
has at least three strikes under § 1915(g), he 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 Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996); § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.