Palmer v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20837
Conference Calendar
THEODORE WILLIAM PALMER,
Plaintiff-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-2264
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April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Theodore William Palmer, Texas prisoner # 847820, challenges
the district court’s 28 U.S.C. § 1915A dismissal as frivolous or
for failure to state a claim of his 42 U.S.C. § 1983 civil rights
lawsuit, asserting that he has not been properly compensated for
work performed while in prison. He argues, for the first time on
appeal, that the failure to compensate him violates Texas law.
This court will not review this newly raised argument. See
Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir.
*
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that this opinion should not be published and is not precedent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. 01-20837
-2-
1999); Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997).
Inasmuch as Palmer’s argument can be construed as a restatement
of his general claim that he was entitled to compensation, the
claim is frivolous because, as the district court determined,
Palmer has no constitutional right to such compensation. See Ali
v. Johnson, 259 F.3d 317, 318 (5th Cir. 2001).
Palmer’s appeal is without arguable merit, is frivolous, and
is therefore DISMISSED. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s
dismissal of Palmer’s complaint counts as a strike for purposes
of 28 U.S.C. § 1915(g), as does this court’s dismissal of the
instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Palmer is CAUTIONED that if he accumulates a third
strike, 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 in imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.