Sexton v. Bobby Ross Group, 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that this opinion should not be published and is not precedent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. 99-11337
Conference Calendar
SAMMIE LEE SEXTON,
Plaintiff-Appellant,
versus
BOBBY ROSS GROUP, Dickens County Correctional Center; COBY
TRUHLICKA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:99-CV-227-C
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June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Sammie Lee Sexton, Texas prisoner # 783335, appeals from the
dismissal with prejudice of his civil-rights lawsuit, filed
pursuant to 42 U.S.C. § 1983, alleging that the defendants caused
the loss of his gold necklace. The district court dismissed his
lawsuit pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) as
frivolous and for failure to state a claim upon which relief may
be granted. A dismissal under § 1915(e)(2)(B)(i) is reviewed for
abuse of discretion, and a dismissal under § 1915(e)(2)(B)(ii) is

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No. 99-11337
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reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275
(5th Cir. 1998).
Sexton’s claims are not cognizable under § 1983. See
McGruder v. Will, 204 F.3d 220, 222 (5th Cir. 2000)(misconduct of
state officials is not actionable under § 1983 in Texas because
adequate state post-deprivation remedies exist); Murphy v.
Collins, 26 F.3d 541, 543-44 (5th Cir. 1994)(same). The district
court’s dismissal was therefore proper.
Sexton’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 dismissal of this appeal as frivolous counts as a
“strike” for purposes of 28 U.S.C. § 1915(g), as does the
district court’s dismissal. See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). We warn Sexton that if he
accumulates one more “strike” under § 1915(g), he will not be
able 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
§ 1915(g).
APPEAL DISMISSED.

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