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Nubine v. Stringfellow ( 2000 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40761
(Summary Calendar)
CLYDE NUBINE,
Plaintiff-Appellant,
versus
A.M. STRINGFELLOW; WAYNE SCOTT;
GARY JOHNSON, Warden; ALAN B. POLUNSKY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(C-00-CV-129)
--------------------
November 28, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant   Clyde   Nubine,    Texas    state   prisoner   #
398312, appeals the magistrate judge’s dismissal of his civil
rights claims as frivolous and for failure to state a claim under
    28 U.S.C. § 1915
    (e)(2)(B)(i) and (ii).        The shackling of Nubine
during transport constituted a rational security measure.             See
Jackson v. Cain,
    864 F.2d 1235
    , 1243-44 (5th Cir. 1989).         Nubine’s
allegations of conspiracy and retaliation are conclusional and thus
fail to give rise to a
    42 U.S.C. § 1983
     claim.        See Babb v. Dorman,
    33 F.3d 472
    , 476 (5th Cir. 1994).
*
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that this opinion should not be published and is not precedent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.
Nubine argues that 42 U.S.C. § 1997e(e) is unconstitutional
but admitted at his Spears1             hearing that his challenge to §
1997e(e) was “theoretical.”             Nubine lacks standing to challenge
that statute.
Nubine contests       the magistrate judge’s denial of his request
for a temporary restraining order (TRO).                We have no jurisdiction
to review a denial of an application for a TRO. Faulder v. Johnson,
    178 F.3d 741
    , 742 (5th Cir. 1999).
Because this appeal 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 as frivolous of this appeal and the magistrate
judge's dismissal as frivolous of Nubine's action each count as a
“strike” for purposes of
    28 U.S.C. § 1915
    (g).                    See Adepegba v.
Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).                 We caution Nubine
that once he accumulates three strikes, he may not 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; SANCTION WARNING ISSUED.
1
Spears v. McCotter,
    766 F.2d 179
     (5th Cir. 1985).
2