Watkins v. Benson

* 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this opinion should not be published and is not precedent except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. 99-60759
Conference Calendar
JOHNEIL WATKINS, JR.,
Plaintiff-Appellant,
versus
EDWARD O. BENSON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:99-CV-592-W-S
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June 14, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Johneil Watkins, Jr., Mississippi prisoner #47464 Q210,
appeals from the dismissal of his civil rights action as
frivolous because the defendant was not a state actor. In his
appellate brief, Watkins outlines his allegations against the
defendant; contends that the defendant acted unethically and
swindled his family; and argues that the district court erred by
dismissing his complaint without allowing him to present evidence
to support it. Watkins’s brother moves to supplement the record;
that motion is DENIED.

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No. 99-60759
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Watkins does not contend that the defendant was a state
actor, as is required to pursue relief under 42 U.S.C. § 1983.
Polk County v. Dodson, 454 U.S. 312, 325 (1981). Watkins has
failed to brief the sole ground for the dismissal of his action.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Moreover, the district court need not have
allowed Watkins to present evidence before dismissing the action.
See 28 U.S.C. § 1915(e)(2)(B)(i).
Watkins’s appeal is frivolous and is dismissed. The
dismissal of Watkins’s action counts as a “strike” for purposes
of 28 U.S.C. § 1915(g), and the dismissal of this appeal counts
as a second “strike.” See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Watkins is CAUTIONED that if he
accumulates three “strikes” under § 1915(g), he will not be able
to proceed in forma pauperis (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).
APPEAL DISMISSED. 5TH CIR. R. 42.2. SANCTION WARNING
ISSUED; MOTION DENIED.

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