Mack v. Scott, 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that this opinion should not be published and is not precedent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. 00-21030
Conference Calendar
JOE H. MACK,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director Texas Department of Criminal Justice,
F. FIGUEROA; M. BROCK; L. ARNOLD; JAMES HOSEA, Captain;
B.M. VINCENT; DR. DAVID LE; NURSE ALLEN; MS. RICHARD;
MR. J. ENSON; MS. LOVELADY; RICHARD THALER, Warden; TIMOTHY
SIMMONS, Warden; ROBERT CHANCE, Warden; TIMOTHY MASSEY, Captain;
HIRSCH, Lieutenant; DRAKE, Sergeant; STIGERS, Correctional
Officer; DENNIS, Correctional Officer; PARNELL, Correctional
Officer; DEAN, Sergeant; MILLER, Sergeant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-2550
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Joe Henry Mack, Texas prisoner # 671331, appeals the
dismissal of his complaint pursuant to 42 U.S.C. § 1985. The
district court, sua sponte, dismissed the suit for failure to
state a claim under Fed. R. Civ. P. 12(b)(6) because Mack failed
to allege a conspiracy. See Newberry v. East Texas State Univ.,

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No. 00-21030
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161 F. 3d 276, 281 (5th Cir 1998). Mack did not establish a
claim under § 1985(3) as he did not allege a race-based
conspiracy and could not have alleged a viable conspiracy claim
had he been given the opportunity to amend his complaint.
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Jones v.
Greninger, 188 F.3d 322, 327 (5th Cir. 1999).
Mack has at least two verified strikes against him. Mack v.
Mohr, No. 98-40375 (5th Cir. Feb. 9, 1999)(unpublished). Mack
has acquired another strike as a result of the district court’s
dismissal of the instant complaint under Rule 12(b)(6), which we
now AFFIRM. Mack may no longer 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 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996).
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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