LeCompte v. Kaylo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30618
Conference Calendar
KEVIN LECOMPTE,
Plaintiff-Appellant,
versus
BARON KAYLO,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-41
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October 25, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin LeCompte, Louisiana inmate #187214, appeals from the
district court’s dismissal for frivolousness of his civil rights
complaint. See 28 U.S.C. § 1915(e)(2)(B)(i). A complaint
brought in forma pauperis (IFP) may be dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) if it lacks an arguable
basis in fact or law. Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999). Review is for an abuse of discretion. Id.
LeCompte raises one challenge to the court’s dismissal. He
contends that the dismissal of his complaint was error because he
*
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that this opinion should not be published and is not precedent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. 01-30618
-2-
was not given the opportunity to amend his complaint and he was
not told by the magistrate judge how to amend or about the
consequences of not amending. LeCompte confuses a dismissal for
frivolousness with a dismissal for failure to state a claim. In
general, error ensues when a district court dismisses a claim for
failure to state a claim without giving the plaintiff an
opportunity to amend. Bazrowx v. Scott, 136 F.3d 1055, 1054 (5th
Cir. 1998). A dismissal of a complaint for frivolousness does
not provide the plaintiff a similar procedural protection.
Graves v. Hampton, 1 F.3d 315, 318 n.12 (5th Cir. 1993).
LeCompte has not demonstrated that the district court abused
its discretion in dismissing the IFP complaint as frivolous.
This appeal is without arguable merit and is therefore frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The
appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
This court’s dismissal counts as LeCompte’s second strike
pursuant to 28 U.S.C. § 1915(g); the first strike arising from
the dismissal in the district court. See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). If LeCompte accumulates three
strikes, he may not proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
he is in imminent danger of serious physical injury. See 28
U.S.C. § 1915(g). LeCompte is cautioned to review any pending
appeals to ensure that they do not raise frivolous issues.
APPEAL DISMISSED; SANCTION WARNING ISSUED.