Warmsley v. West

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40038
Conference Calendar
RAY WARMSLEY,
Plaintiff-Appellant,
versus
TIM WEST, In his Official, Personal & Individual Capacity;
PAUL GOMEZ, In his Official, Personal & Individual Capacity;
JOSEPH BRADY, In his Official, Personal & Individual Capacity;
WAYLON KELLY, In his Official, Personal & Individual Capacity;
TANYA HANLY, In her Official, Personal & Individual Capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CV-1907
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August 24, 1999
Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.
PER CURIAM:*
Landon Ray Warmsley, Texas prisoner #440277, appeals from
the dismissal of his civil rights action for failure to
prosecute. Warmsley moves for reimbursement of the costs of his
appeal and an award of attorney fees. Warmsley’s motion is
DENIED.
Warmsley’s action was dismissed because he failed to accept
*
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that this opinion should not be published and is not precedent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. 99-40038
-2-
the magistrate judge’s order assessing filing fees pursuant to
the Prison Litigation Reform Act (PLRA). Warmsley argues that
prison mailroom personnel are in violation of Guajardo v.
Estelle, 580 F.2d 748 (5th Cir. 1978), because the envelope
containing the magistrate judge’s Prison Litigation Reform Act
(PLRA) assessment order was opened; that mailroom personnel are
largely responsible for the dismissal of his action; that the
dismissal of his action manifested the district court’s prejudice
against him; and that the dismissal of his action violated his
right to petition the government for redress of grievances.
The dismissal of Warmsley’s complaint without prejudice was
not an abuse of discretion. Larson v. Scott, 157 F.3d 1030, 1031
(5th Cir. 1998). Warmsley’s appeal is without arguable merit and
is frivolous. Accordingly, the appeal is DISMISSED. 5TH CIR. R.
42.2. The dismissal of this appeal as frivolous counts as a
strike for purposes of 28 U.S.C. § 1915(g). We caution Warmsley
that once he accumulates three strikes, he may not proceed in
forma pauperis (IFP) in any civil action or appeal filed while he
is in prison unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; WARNING ISSUED.