Romo v. Earl, 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 23, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50467
Conference Calendar
MARIO ROMO,
Plaintiff-Appellant,
versus
RONNIE EARL, District Attorney; GARY COBB,
Assistant District Attorney, Travis County;
MINDY MCCRAKEN, Assistant District Attorney,
Travis County; STATE OF TEXAS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CV-154-LY
--------------------
Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Mario Romo, Texas prisoner # 1015586, appeals from the
district court’s dismissal with prejudice of his complaint filed
pursuant to 42 U.S.C. § 1983. The district court declined to
construe Romo’s complaint as a habeas corpus petition and, to the
extent that he sought such relief, the district court dismissed
those claims without prejudice.

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No. 04-50467
-2-
Romo has filed a motion for leave to file a supplemental
brief incorporated in his appellate brief. For the first time in
his proposed supplemental brief, Romo seeks to add new parties
and to raise new claims. These issues will not be considered for
the first time on appeal. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). Accordingly, his motion
to file a supplemental brief is DENIED.
Romo has not challenged in this court the district court’s
reasons for dismissing his complaint. Accordingly, it is as if
Romo had not appealed the judgment. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Romo’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. 5TH CIR.
R. 42.2. The district court’s dismissal of Romo’s complaint as
frivolous counts as a strike under 28 U.S.C. § 1915(g), as does
the dismissal of this appeal. See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Romo is CAUTIONED that if he
accumulates three strikes, he will no longer be allowed to
proceed in forma pauperis 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 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED;
MOTION TO FILE SUPPLEMENTAL BRIEF DENIED.

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