King v. Yates, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40087
Conference Calendar
CYRUS C. KING,
Plaintiff-Appellant,
versus
UNIDENTIFIED YATES, Lieutenant, Coffield Unit; UNIDENTIFIED
DEWRY, Lieutenant, Coffield Unit; UNIDENTIFIED MARTIN,
Officer, Coffield Unit,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-365
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Cyrus C. King, Texas inmate # 521582, appeals the dismissal
of his civil rights complaint for failure to comply with the
district court’s order that he pay a partial initial filing fee
of $1.06. King offers no reason on appeal for why he refused to
comply with the court’s order to pay the filing fee. Nor does
the record indicate that he was justified in refusing to pay the

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No. 02-40087
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filing fee. Given that King is not barred by Texas’s statute of
limitations from refiling his complaint, the district court did
not abuse its discretion in dismissing his complaint under FED.
R. CIV. P. 41(b). McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th
Cir. 1988).
King’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, his appeal is DISMISSED. See 5th Cir. R.
42.2. King is cautioned that 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, 385-87 (5th
Cir. 1996). King is also cautioned that if he accumulates three
"strikes" under § 1915(g), he will not be able to proceed IFP in
any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).

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