Budnick v. Hampden County House of Correction

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10320
Conference Calendar
THOMAS P. BUDNICK,
Plaintiff-Appellant,
versus
HAMPDEN COUNTY HOUSE OF CORRECTION,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-3048-N
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Thomas P. Budnick, # 34-123286, a Massachusetts inmate
housed at the Hampden County House of Corrections in Ludlow,
Massachusetts, appeals the dismissal of his complaint pursuant to
28 U.S.C. § 1406(a) for lack of proper venue. See 28 U.S.C.
§ 1391(b). We hold that the district court did not abuse its
discretion in dismissing Budnick’s complaint for lack of proper
venue. See Lowery v. Estelle, 533 F.2d 265, 267 (5th Cir. 1976).
*
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this opinion should not be published and is not precedent except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. 04-10320
-2-
Because the appeal lacks arguable merit, it is frivolous and
is DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 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). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Budnick is cautioned that
once he accumulates three strikes, he may not proceed in forma
pauperis (IFP) in any civil action or appeal filed while he is
incarcerated or detained in any facility. As Budnick is not
proceeding IFP in the instant appeal, Budnick also is WARNED that
sanctions may be imposed in response to future frivolous filings.
APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.