Thomas v. Jennings

PER CURIAM. * Gerald Duane Thomas, Texas prisoner #793698, appeals the district court’s dismissal with prejudice of his civil rights complaint as frivolous under 28 U.S.C. § 1915. Thomas argues that the district court erred in denying the discovery motions he filed before the hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). The denial of these motions was not an abuse of discretion. See McGuire v. Sigma Coatings, Inc., 48 F.3d 902, 906 (5th Cir.1995); Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986); Feist v. Jefferson County Comm’rs Court, 778 F.2d 250, 252-53 (5th Cir.1985). Thomas’ argument that the district court erred in denying the motions he filed after the entry of the final judgment, namely a motion for a judgment on the pleadings, a motion for summary judgment, and a motion for discovery, is also without merit. See Winchester v. United States Atty. for Southern Dist. of Tex., 68 F.3d 947, 948-49 (5th Cir.1995). We also reject Thomas’ argument that the district court errone *48 ously considered the testimony of Gary West before the Spears hearing. We find no evidence in the record that the district court considered testimony from this person. We review a 28 U.S.C. § 1915(e)(2)(B)® dismissal of an in forma pauperis (IFP) complaint as frivolous for an abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). Thomas does not challenge the district court’s summary of the evidence presented at the Spears hearing. Based upon this evidence, the district court concluded that Captain Jennings did not know Thomas faced a substantial risk of serious harm from his cell mate. The district court’s dismissal of Thomas’s civil rights complaint was not an abuse of discretion. Thomas’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. See 5th Cm. R. 42.2. The dismissal of this appeal as frivolous and the district court’s dismissal of this lawsuit as frivolous constitute two strikes for purposes of the 28 U.S.C. § 1915(g) bar. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). We caution Thomas that once he accumulates three strikes, he may not 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). DISMISSED AS FRIVOLOUS; WARNING ISSUED. Footnotes [*] 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.