Vinson v. Cornyn ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50760
Summary Calendar
WESLEY VINSON,
Plaintiff-Appellant,
versus
JOHN CORNYN, Attorney General,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-104-SS
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March 29, 2002
Before JOLLY, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Wesley Vinson, Texas prisoner # 466636, has appealed the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous and for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii). Vinson argues that John Cornyn, the
Attorney General of Texas, is vicariously liable for the actions
of his agents, the Texas officers who extradited him from Ohio to
Texas. He also argues that Cornyn is responsible for the
injuries he has received from other inmates since his return to
prison in Texas. Vinson has not shown that Cornyn was personally
involved in the alleged constitutional violations and has not
*
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that this opinion should not be published and is not precedent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. 01-50760
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shown a pattern of widespread abuse regarding extradition
practices by Texas officers or the injuries he has allegedly
received from other inmates. Cornyn is not vicariously liable
for the actions of his subordinates. See Thompkins v. Belt,
828 F.2d 298, 30304 (5th Cir. 1987).
Vinson also argues that he has exhausted his state remedies
concerning his habeas claims. However, Vinson has not cited or
presented copies of state court decisions establishing that he
raised these claims in the state’s highest court. Therefore, he
has not shown that the district court erred in dismissing his
habeas claims without prejudice for failure to exhaust his state
remedies. See Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
1999). Further, the district court for the Western District of
Texas was not the proper venue for filing the petition because
Vinson is in custody in the Northern District of Texas. See
28 U.S.C. § 124; see also Hooker v. Sivley, 187 F.3d 680, 681-82
(5th Cir. 1999).
The district court’s dismissal of his 42 U.S.C. § 1983
claims as frivolous and for failure to state a claim and the
dismissal of his habeas claims without prejudice as unexhausted
count as a strike under 28 U.S.C. § 1915(g). See Patton v.
Jefferson Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998). The
dismissal of this appeal as frivolous also counts as a strike
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). Vinson is cautioned that if he
accumulates a third strike under 28 U.S.C. § 1915(g), he may not
proceed in forma pauperis in any civil action or appeal while he
No. 01-50760
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is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. Vinson’s motions for
attorneys’ fees and for injunctive relief are DENIED.
APPEAL DISMISSED; MOTIONS DENIED; SANCTION WARNING ISSUED.