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Watson v. Winborn ( 2003 )


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  •                                                         United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  April 21, 2003
Charles R. Fulbruge III
Clerk
No. 02-10984
Conference Calendar
BOBBY WATSON,
Plaintiff-Appellant,
versus
B.J. WINBORN,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:02-CV-13
--------------------
Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Bobby Watson (“Watson”), Texas state prisoner #581473,
appeals the district court’s dismissal of his
    42 U.S.C. § 1983
    complaint as frivolous and for failure to state a claim upon
which relief could be granted.    See
    28 U.S.C. § 1915
    (e)(2).
Watson argues that the district court erred in dismissing his
complaint because the evidence established that Correctional
Officer B.J. Winborn violated prison procedures when he made
sexual advances and racial slurs directed toward Watson.
*
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that this opinion should not be published and is not precedent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. 02-10984
-2-
The district court did not err in determining that Watson’s
claims were not actionable under
    42 U.S.C. § 1983
     because verbal
threats, name calling, and threatening gestures by prison guards
do not amount to a constitutional violation.     See Calhoun v.
Hargrove,
    312 F.3d 730
    , 733 (5th Cir. 2002); Robertson v. Plano
City of Texas,
    70 F.3d 21
    , 24 (5th Cir. 1995).     Watson’s
contention that Winborn should have been prosecuted for his
behavior is not actionable under
    42 U.S.C. § 1983
    .     See Oliver v.
Collins,
    904 F.2d 278
    , 281 (5th Cir. 1990).    Finally, Watson’s
contention that Winborn failed to follow prison regulations lacks
merit because a state’s failure to follow its own procedural
regulations does not establish a constitutional violation.        See
Jackson v. Cain,
    864 F.2d 1235
    , 1251-52 (5th Cir. 1989).
Watson’s appeal is without arguable merit and is dismissed
as frivolous.   See 5TH CIR. R. 42.2; Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983).   The dismissal of the appeal as
frivolous and the district court’s dismissal of Watson’s
    42 U.S.C. § 1983
     complaint as frivolous and for failure to
state a claim each count as a “strike” under the three-strikes
provision of
    28 U.S.C. § 1915
    (g).   See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).     Watson is CAUTIONED that
if he accumulates three “strikes” 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
No. 02-10984
-3-
facility unless he is under imminent danger of serious physical
injury.   See
    28 U.S.C. § 1915
    (g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.